00640 Volume 3 of 111 SJAR ROT FOIA Version VERBAT IM 1 RECORD OF TRIAL2 (and accompanying papers) of (Name: Last, First, Middie initiai) (Sociai Security Number) (Rank) Headquarters and Headquarters Company, United States Army Garrison U-S- Army Fort Myer, VA 22211 (Unit/Command Name) (Branch of Service) (Station or Ship) By GENERAL COURT-MARTIAL convened by Commander (Titie of Con vening Authority) UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON (Unit/Command of Con vening Authority) Tried at Fort. Meade, MD on see below (Piace or Piaces of Triai) (Date or Dates of Triai) Date or Dates of Trial: 23 February 2012, 15?16 March 2012, 24?26 April 2012, 6?8 June 2012, 25 June 2012, 16?19 July 2012, 28?30 August 2012, 2 October 2012, 12 October 2012, 17?18 October 2012, 7?8 November 2012, 27 November 2 December 2012, 5?7 December 2012, 10?11 December 2012, 8?9 January 2013, 16 January 2013, 26 February 1 March 2013, 8 March 2013, 10 April 2013, 7?8 May 2013, 21 May 2013, 3?5 June 2013, 10?12 JUne 2013, 17?18 June 2013, 25?28 June 2013, 1?2 July 2013, 8?10 July 2013, 15 July 2013, 18?19 July 2013, 25?26 July 2013, 28 July 2 August 2013, 5?9 August 2013, 12?14 August 2013, 16 August 2013, and 19?21 August 2013. 1 insert "verbatim or "summarized as appropriate. This form be used by the Army and Navy for verbatim records of triai oniy.) 2 See inside back co ver for instructions as to preparation and arrangement. DD FORM 490, MAY 2000 PREVIOUS EDITION IS OBSOLETE Front Cover 00641 3. Nothing contained in this ?ling should be construed in any manner as a concession by PFC. Manning or his defense that the originally requested defense witnesses were not relevant. The defense maintains that its requested witnesses should have been produced in person at the Article 3" hearing. . k? DAVID EDWAR l) COOMBS Civilian Defense Counsel DEPARTMENT OF THE ARMY JOINT BASE MYEH - HENDERSON HALL 204 LEE AVENUE FORT MYEFI. VIRGINIA 22211-1199 REPLY TO ATTENTION 0F N00 MEMORANDUM FOR SEE DISTRIBUTION SUBJECT: Exclodable Delay - United States v. PFC Bradlev Mannine I. On 16 October 201 l, the prosecution submitted a request to exclude the period between the date of this memorandum and 16 December 20] as excludable delay under RCM 7070;). The reasons lor the request were for the proseCution to obtain the final classi?cation review from an Original Classi?cation Authority and to provide the command adequate time to execute OPLAN BRAVO. See Enclosure 1. On to November 201 l, the defense objected to the government?s proposed start date and proposed the Article 32 start on 12 December 201 1. Additionally. the defense maintained its previous position that any additional delay should not be excluded under Rule for Courts-Martial 707w). See Enclosure 2. I reviewed both the prosecution?s request and its enclosures and the defenses response. 2. This request is: i] approved. The Article 32 Investigation will restart no earlier than 1s December 20! l. The period between 22 April 201 and 16 December 20] is excludable delay tinder RCM 707(c]. approved. in part. The Article 32 Invesdgation will restart no earlier than [2 December 20] l. The period between 22 April 20] and 12 December 201 is excludable delay under RCM 'i'O'itc). disapproved. The Article 32 Investigation will restart no earlier than 12 December 201 I. disapproved. The Article Investigation will restart within thirty days of this memorandum. 2 Encls CARL R. COFFMAN, JR. 1- Prosecution Request, 16 Nov COL, AV 2. Defense Response, 16 Nov 1 Commanding DISTRIBUTION: l-Article 32 IO l-Trial Counsel l-Defense Counsel Int. EXHIBIT 52 DEPARTMENT OF THE ARMY Jomr EASE MYER HENDERSON HALL 204 LEE AVENUE FORT MYER, VIRGINIA 22211-1199 TO AT TE OF 23:55? 31W MEMORANDUM FDR SEE DISTRIBUTION SUBJECT: Delay of Article investigation - United States v. PFC Bradley Manning 1. On 26 September 21:? l, the prosecution submitted a request to delay restarting the Article 32 investigation until the completion of Original Classi?cation Authority (OCA) disclosure requests, DEA classi?cation reviews, a ?nal determination of derivative classifications, receipt of signed protective orders from the defense, and properly portion-marked classi?ed documents by the National Security Agency (NSA), or '27 October 201 1. See Enclosure 1. On 27 September 201 l, the defense maintained its previous position that any additional delay should not be excluded under Rule for Courts-Martial (REM) 7070:). See Enclosure 2. 2. This request is: W), approved. The Article 32 investigation is delayed until the earlier ofthe completion of the OCA disclosure requests, OCA classification reviews, a ?nal determination of derivative classi?cations, receipt of signed protective orders from the defense, and properly portion?marked classi?ed documents by the NSA, or 27 October 2011. The period between 22 April 201 and the restart ofthe Article investigation is excludable delay under RCM 707(c). The prosecution is required to provide me an update no later than 25 October 201 l. disapproved. The Article investigation will restart within thirty days of this memorandum. 3. After reviewing pertinent portions of the case ?le and receiving an update of the procedures being followed in this case, it is my understanding that ongoing national security concerns exist in this case, as well as an ongoing law enforcement investigation(s) into PFC Manning and others. in light of the national security concerns and ongoing investigation?), the prosecution will cautiously proceed with the disclosure of information, but will comply with its obligations under Article 46, UCMJ, RCM 4052-, RCM 701, RCM 703, and applicable case law. in addition, once the prosecution receives the authority to disclose previously undisclosed information to the defense, it will do so expeditiously to minimize any unnecessary delay. 2 Encls C??t FL COFFMAN, IR. 1 Prosecution Request, '26 Se]: ii COL, AV 2. Defense RcSp-CInse, 27 Sep 1 Commanding DISTRIBUTION: l-Article 32 i0 i-Trial Counsel i-Defense Counsel DEPARTMENT OF THE ARMY JDNT MYER - HENDERSUN HALL 204 LEE AVENUE FORT MYER. 22211-1199 REPLY TO AT OF HKND-MHH-ZA 13311 MEMORANDUM FOR SEE DISTRIBUTION SUBJECT: Delay of Article 32 Investigation - PFC Bradley Manning I . On 25 August 201 1, the prosecution submitted a request to delay restarting the Article 32 investigation until the United States receives proper authority to release discoverable unclassi?ed evidence and information, as well as consent from all the Original Classi?cation Authorities (DCAs) involved in this case to release discoverable classi?ed evidence and information to the defense. See Enclosure 1 . 0n August 201 ,the defense maintained its previous positionthatany additional delay should not be excluded under Rule for Courts-Martial (RCMJ See Enclosure 2. 2. This request is: approved. The Article 32 Investigation is delayed until the earlier of the completiOn of the OCA Disclosure Requests and DCA Classi?cation Reviews, ?nal determination of derivative classi?cations, final review of the CID case ?le by the NSA, and authorization is granted to disclose protected unclassi?ed information, or 27 September 201 I. The period between 22 April 201 and the restart of the Article 32 Investigation is excludable delay under RCM 707(c). The prosecution is required to provide me an update no later than 23 September 201 l. disapproved. The Article 32 Investigation will restart within thirty days of this memorandum. 3. After reviewing pertinent portions of the case ?le and receiving an update of the procedures being followed in this case, it is my understanding thatongoing national security concems exist in this case, as well as an ongoing law enforcement investigation(s) into PFC Manning and others. In light of the national security concerns and ongoing investigation(s), the prosecution will cautiously proceed with the disclosure of information, but will comply with its obligations under Article 46, UCMJ, RCM 4115, RCM 701 RCM 103, and applicable case law. In addition, once the prosecution receives the authority to disclose previously undisclosed information to the defense, it will 'do so expeditiously to minimize any unnecessary delay. 2 Encls CARL R. CUFF MAN, JR. 1. Prosecution Request, 25 August 201 COL, AV 2. Defense Response, 27 August 201 Commanding DISTREBUTION: l-Article 32 I-Trial Counsel l-Defense Counsel DEPARTMENT OF THE ARMY JOINT ease NIYER- HENDERSON HALL 204 LEE avenue FORT VIRGINIA 22211-1195 REPLY TD A11 Elem OF 26 July 2U11 WMORANDUM FOR SEE. DISTRIBUTION SUBJECT: Delay ofAricle 32 Investigation - PFC Bradley E. Manning 1. On 22 July 201 l. the prosecuion submitted a request to delay restarting the Article 32 [nvesigation unil the United States receives proper authority to release discoverable unclassi lied evidence and information. as well as consent from all the Original Classi?cal'on Authorities (OCAs) involved in this case to release discoverable classi?ed evidence and information to the defense. See Enclosure 1. On 25 July 2o] 1. the defense renewed its request to order the United States to provide either a substitute for or a smnmary oftlie information for the relevant classi?ed documents; to allow the defense to inspect any and all unclassi?ed documents. tangible items. and reports within the government?s control; to provide discovery to the defense either previously denied or not provided; and to provide access to all CID and other law enforcement agents who have worked on this case. See Enclosure 2. 2. This request is: approved. The Article 32 Investigation is delayed until the earlier of the completion of the DCA isclosure Requests and OCA Classification Reviews. and authorization is granted to disclose protected unclassified information, or 2? August 20] l. The period between 22 April 201 and the restart ofthe Aricle 32 Investigaion is excludahle delay under Rule for Courtdeartial (ROM) 7070:}. The prosecuion is requiredto provide me an update no later than 25 August 201 l. disapproved. The Article 32 investigation will restart within thirty days of this memorandum. 3. After reviewing pertinent portions of the case file and receiving an update ofthe procedures being followed in this case. it is my understanding that ongoing national security concerns east in this case, as well as an ongoing law enforcement investigaion(s) into PFC Manning and others. In light ofthe national security concerns and ongoing invesigation[s). the prosecution will cautiously proceed with the disclosure of infonnaion. but will comply with its obligations under Article 46. UCMJ. RCM 405. RCM 701, RCM 1'03. and applicable case law. In addition. once the prosecution receives the authority to disclose previously undisclosed information to the defense, it will do so expeditiously to minimize any unnecessary delay. 2 Encls CARL R. COFFMAN, JR. 1. Prosecuion Request, 25 July 201 COL. AV 2. Defense Response. 25 July ?20] Commanding DISTRIBUTION: l-Article 32 IO l-Trial Counsel l-Defense Counsel DEPARTMENT OF THE ARMY tocrr ass :3 acres HENDERSON HALL 204 LEE avenue roar siren. vmonna 212 199 TD OF MND-MHH-ZA 2 Him 354 MEMORANDUM FOR SEE DISTRIBUTION SUBJECT: Delay of Article 32 hivestigation - PFC Bradley E. Manning 1. On 22 May 201 l, the prosecution submitted a request to delay restarting the Article 32 Investigation until the United States receives proper authority to release discoverable unclassi?ed evidence and information, as well as consent from all the Original Classi?cation Authorities (DOM) involved in this case to release discoverable classi?ed evidence and information to the defense, whichever is earlier. See Enclosure I. On 24 May 2011, the defense provided a response which maintained its 26 April 201 position acknowledging the need for additional discovery and noting the potential for ?nther delay for defense to adequately prepare for the Article 32. See Enclosure 2. 2. This request is: approved. The Article 32 Investigation is delayed until the earlier of the completion of the OCA Disclosure Requests and OCA Classi?cation Reviews, and authorization is granted to disclose protected unclassi?ed information, or 25 June 2011. The period between 22 April 2011 and the restart of the Article 32 Investigation is eacludable delay under Rule for Courts-Martial (RUM) 707(c). The prosecution is required to provide me an update no later than 25 June 2011. disapproved. The Article 32 Investigation will restart within thirty days of this memorandum. 3. After reviewing pertinent portions of the case ?le, it is my understanding that ongoing national security concerns exist in this case, as well as an ongoing law enforcement investigation(s) into PFC Manning and others. In light of the national security concerns and ongoing investigation(s), the prosecution will cautiously proceed with the disclosure of information, but will comply with its obligations under Article 46, UCMJ, RCM 405, ROM 701, RCM 703, and applicable case law. In addition, once the prosecution receives the authority to disclose previously undisclosed information to the defense, it will do so expeditiously to minimize any unnecessary delay. 2 Encls CARL R. COFFMAN, IR. 1. Prosecution Request, 22 May I COL, AV 2. Defense Request, 24 May 1 Commanding DISTRIBUTION: l-Article 32 IO l-Trial Counsel l-Defense Counsel DEPARTMENT OF THE ARMY JOINT BASE MYER HENDERSON HALL 204 LEE avenue MYER. VIRGINIA 22211-1199 TD ATTE NTIDN DF 29 APR 201i MEMORANDUM FOR SEE DISTRIBUTION SUBJECT: Delay ofArticle 32 Investigation - PFC Bradley E. Manning 1. On 25 April 20] I. the prosecution submitted a request to delay restarting the Article 32 Investigation until the United States receives consent from all the Original Classi?cation Authorities (OCAs) involved in this case to release discoverable classi?ed evidence and information to the defense. See Enclosure 1. On 26 April 2011, the defense provided a response which acknowledged the need for the classi?ed information and made three specific requests. See Enclosure 2. 2. This request is: approved. The Article 32 Investigation is delayed until the earlier ofthe completion of the OCA isclosure Requests and OCA Classi?cation Reviews or 25 May 20] l. The period between 22 April 20] and the restart ofthe Article 32 Investigation is excludable delay under Rule for Court-Martial (RCM) TOTE). The prosecution is required to provide me an update no later than 23 May 201 l. disapproved. The Article 32 Investigation will restart within thirty days of this memorandum. 3. After reviewing pertinent portions ofthe case ?leI it is my underStanding that ongoing national security concerns calm in this case, as well as an ongoing law enforcement investigation(s) into PFC Manning and others. In light of the national security concerns and ongoing investigation(5). the prosecution will cautiously proceed with the disclosure of information, but will comply with its obligations under Article 46, UCMJ. RCM 405. RCM RCM 703, and applicable case law. In addition. once the prosecution receives the authority to disclose previously undisclosed information to the defense. it will do so expeditiously to minimize any unnecessary delay. 2 Encls CAEE COFFMAN. JR. 1. Prosecution Request. 25 Apr 1 COL, AV 2. Defense Request, 26 Apr 1 1 Commanding DISTRIBUTION: l-Article 32 IO l-Trial Counsel l?Defense Counsel FOR OFFICIAL use DEPARTMENT OF THE ARMY us. new MILITARY DISTRICT OF wasmnorou 210 a STREET LESLEY J. MCNAIR. DC anew-son T0 ENTIDN DF ANJA-CL 35 April 2011 MEMORANDUM FOR Commander, Joint Base Myer Henderson Hall, 204 Lee Avenue. Fort Myer. VA 22211-1199 SUBJECT: Request for Delay ofArticle Investigation - US. v. PFC Bradley E. Manning 1. PURPOSE. The prosecution in the above-referenced case requests you delay restarting the Article 32 Investigation until the United States receives consent from all the Original Classi?cation Authorities (OCAS) to release discoverable classi?ed evidence and information to the defense. This consent is necessary in order for the United States to fulfill its discovery obligations under Article 46, UCMJ and the Rules for Courts?Martial (RCM), as well as for the defense to adequately prepare for the Article 32 Investigation. 2. BACKGROUND. Under Executive Orders 12958 and 13526 (as applicable) and Army Regulations 380-5 and 330-67, the United States cannot release classi?ed information originating in a department or agency to parties outside ofthe executive branch without the consent ofthe OCA or their delegate. Since 11' June 2010, the United States has been diligently working with all ofthe departments and agencies that originally classi?ed the information and evidence sought to be disclosed to the defense and the accused. Enclosed are redacted copies ofthe OCA Disclosure Requests and OCA Classi?cation Review Requests without their enclosures, respectively. However, because ofthe special circumstances ofthis case, including the voluminous amounts of classi?ed digital media containing multiple equities and the subsequent discovery ofrnore information helpful to both the United States and the accused, more time is needed for executive branch departments and agencies to obtain the necessary consent from their OCA or authorizing of?cial. 3. EXCLUDABLE DELAY. As the convening authority, you have the authority to grant a reasonable delay under the facts and circumstances ofa particular case. Reasons to grant a delay include, for example, the need for time to complete other proceedings related to the case, or time to secure the availability of evidence. 4. REQUEST. The prosecution requests a reasonable delay of restarting the Article 32 Investigation until the earlier ofthe completion ofthe OCA Disclosure Requests and OCA Classi?cation Reviews or 25 May 201 1. For the reasons stated above, the United States requests the period between 23 April 201 and 25 May 201 1, or earlier, be designated as excludable delay under RCM T07(c). The prosecution will provide you an update no later titan 25 May 201 I. 5. The point ofcontact for this memorandum is the undersigned a? Encls as CPT, 1A Trial Counsel CF: Defense Counsel twiencls) FOR OFFICIAL USE ONLY 26 April 201 I MEMORANDUM FOR Commander. Joint Base Myer -4 Henderson Hall. 204 Lee Avenue, Fort Myer. VA 22211-1199 SUBJECT: Government Request for Delay ofArticIe 32 Investigation. United States vs. PFC Bradley E. Manning I. On 25 April 201 I. the Government requested that you delay restarting the Article 32 Investigation until the United States received consent from all ofthe Original Classi?cation Authorities (OCAs) to release discoverable classified evidence and information to the defense. It appears that no OCA has given such approval since the Defense has yet to receive any classified evidence or information. Without this information. the Defense is unable to adequately prepare for the Article 32. 2. In order to avoid any additional unnecessary delay. the Defense requests that you order the Government to: a. Provide either a substitute for or a summary of the information for relevant classified documents; b. Allow the Defense to inspect any and all unclassified documents. tangible items. and reports within the Government?s control, which are material to the Defense's preparation. Rule for Court-Martial and 701(a). The standard set out in R.C.M. 405 and R.C.M. i'Ol requires the Government to turn over items that are within the ?Government?s control.? This means that the Trial Counsel. upon Defense request. has an af?rmative obligation to seek out requested evidence that is in the possession ofthe Government even if that evidence is not already in the immediate possession of the Trial Counsel. United States v. Williams. 50 MJ. 436. 44I (C.A.A.F. 1999). The "prosecutor will be deemed to have knowledge ofand access to anything in the possession, custody. or control of any federal agency participating in the same investigation of the defendant.? United States v. 868 F.2d 1032. 1036 Cir. 1989); Williams. 50 MJ. at 441. The Defense speci?cally renews its request for discovery previously either denied or not provided by the Government. See Attachment A F: AND c. Ensure the Defense has equal access to CID and other law enforcement witnesses by requiring the Trial Counsel to make available any requested witness. R.C.M. 405tg}(l MB) and establishes that the prosecution and defense "shall have equal opportunity to obtain witnesses and evidence." See also Article 46. UCMJ. The Defense has attempted to interview several ofthe CID agents in this case. On l4 April 2011. the Defense received an email from Deputy Director Daniel T. Andrews ofthe Computer Crime Investigative Unit, requesting that the Defense coordinate all witness interview requests through DW Trial Counsel. Specifically, the Defense requests the ability to speak with SA Toni M. Graham. SA Thomas A. Smith. SA Kenneth A. King. SA Charles T. Antes Jr. SA Mark A. Mander. SA Randall A. Bethke. SA Government Reques't for Delay of Article 32 Investigation, United States vs. PFC BLadlev E. Manninu Matthew J. Haywood. SA Jennie R. Liseiandri. CW2 Nathan E. Langley. SA Calder 1.. Robertson 111. SA David S. Shaver. and SA Ronald Rock. 3. Due to the limited discover}; provided so far, it is liker that the Article 32 will need to be delayed again unless the above information is provided in a timely manner. The Defense requests that an}: additional delay be credited to the Government. 4. The point ofeontaet for this memorandum is the undersigned a? Encls DAVID EDWARD coon-res As Civilian Defense Counsel DEPARTMENT OF THE ARMY 159TH JUDGE ADVOCATE GENERAL DETACHMENT (LSD) MG ALBERT C. USAR CENTER 6901 TELEGRAPH ROAD ALEXANDRIA. 22310-3329 new To ATTENTION oz: ARRC-CAR-LSQ 12 August 2010 MEMORANDUM FOR Commander. U.S. Army. Joint Base Myer-Henderson Hall. Fort Myer. VA 2221] SUBJECT: Delay ofArtiele 3E Investigation of PFC Bradley Manning 1. 0n 1 I August 2010, the defense submitted a request For delay in the Article. 32 investigation pertaining to PFC Manning. The defease requested that the delay be granted until the Rule for Courts-Martial 706 Sanin Board is completed. I recommend that you approve the defense delay. 2. ll" you approve the defense request. I recommend that you attribute any delay to the defense. 3. Point ofeontaet is the undersigned at? PAUL R. ALMANZA LTC. .IA. USAR Investi gating Of?cer DEPARTMENT OF THE ARMY UNITED sures new "raw. DEFENSE ssevrcs DEFENSE counsm. ASSISTANCE Paoonm ARLINGTON. 22203 REPLV TO ATTENTION DF: JALS-TD 11 August 2010 MEMORANDUM THRU LTC Paul Almanza, 150ih judge Advocate General Detachment, Legal Support Organization, MG Albert C. Lieber USAR Center, 6901 Telegraph Road, Alexandria, Virginia 22310 FOR Commander, United States Army Garrison, loint Base Myer-Henderson Hall, 204 Lee Avenue, Fort Myer, Virginia 2221 1*1 199 SUBJECT: Delay Request, United States v. Private First Class Bradley Manning, Headquarters and Headquarters Company, US. Army Garrison, loint Base MyeruHenderson Hall, Fort Myer, Virginia 22211 1. The Defense requests a delay in the subject court~martial until the inquiry you ordered under the provisions of Rule for Court-Martial 706 is completed. The defense maintains responsibility for this delay because Captain Paul Bouchard initially requested the inquiry from PFC Manning's previous chain of command. This delay would terminate on the date the results of the inquiry are received by PFC Manning?s detailed defense counsel. 2. i am the point of contact for an uestions or concerns regarding this request. I may be contacted at THOMAS F. HURLEY MAI. IA Defense Counsel DEPARTMENT OF THE ARMY 150TH JUDGE ADVOCATE GENERAL DETACHMENT MG ALBERT c. usAR CENTER 5901 TELEGRAPH ROAD ALEXANDRIA. VIRGINIA 22310-3320 REPLY TO ATTENTION OF AF RC -M.IVA .lanuary 2012 MEMORANDUM FOR US v. Manning, Article 32th) Participants SUBJECT: Excludable Delay 1. The Article 32 hearing in this case concluded on 22 December 20] 1. On 23 December 20l l, I reviewed evidence. Between 24 December 201 I and 2 January 20l2 I did not work On this investigation. Of these ten days, six (24-26 December 20] and 3] December 2 January 12) were federal holidays or weekend days. I worked on this investigation on 3-6 January 2012 and again from 9-l 1 January 20l2. but not on 7-8 January 2012. which were weekend days. 2. The period between 24 December 20] and 2 January 20l2. and between 7-8 January 2012. is excludable delay under R.C.M. 707(c). 3. FCC for this memorandum is the undersigned. PAUL R. ALMANZA LTC. JA. USAR Investigating Of?cer Page 1 of 12 Subject Determinations and Evidence List (UNCLASSIFIED) Dare; 12t14l?11 14:18 To: "Almanza. Paul" From: paulralmanza I 23 use Legislative History incite) us v. Gunderman to? MJ easier (415k8j Nissho-iwai Kline (845 F2d 1300).th {dg?kBl Hart Hairston {343 F?d 2003.rtf [432kB} Classification: UNCLASSIFIED Counsel Three issues, listed below. And in addition to attaching the documents referenced in 1., below, I am also attaching my determinations regarding defense objections to government evidence and my evidence list. i. Statements under penalty of perjury. I received legal advice from my legal adviser yesterday concerning whether a statement under penalty of perjury constitutes a "sworn statement? permitting it to be considered over defense objection if the witness is not reasonably available. The advice was that in accordance with the text of 28 U.S.C. Section 1746. a declaration under penalty of perjury is legally given "like force and effect" of a sworn statement and for purposes of consideration as an alternative to testimony at the Article 32 may be considered as a sworn statement. LTC Holzer also advised that the discussion to Article 131 {see para. 5'i'ct3j} mentions signing a summarized transcript of Article 32 testimony under penalty of perjury, which indicates that such statements signed outside of an Article 32 hearing but associated with such an investigation can be considered. I also note that the classi?cation review statements at issue all indicate that they are in the "course ofjustice" as they all indicate the persons making the statements knew they were being prepared for use in this case. As such, consider these statements to have the same indicia of reliability as sworn statements. Based on his advice and my review of the indicia of reliability, I intend to consider the statements made under penalty of perjury provided by RADM Kevin Donegan, Mr. Robert Betz. LtGen Robert Schmidle, VADM Robert Harward, Mr. Patrick Kennedy, RADM David Woods, and the person subscribing Bales numbers 00378148- 00378175 and 00410623-00410634. LTC Holzer provided four documents, attached. supporting his advice: a. The legislative history of 28 U.S.C. Section 11MB. b. US v. Gunderman, 67 MJ. 583 (ACCA 2009) c. Nissho?lwai v. Kline, 845 F.2d 1300 (5th Cir. 1983) d. Hart v. Hairston, 343 F.3d 762 t5th Cir. 2003}. 2. Request for reconsideration of closure determinationfrequest for media exclusion and gag order. I recognize that the defense disagrees with my determination that reasonable alternatives to closure, such as thorough voir dire of the panel members and appropriate rulings and instructions by the military judge, would ensure that should this case be referred to trial, PFC Manning would receive a fair trial. However, I do not believe that the defense has shown why these alternatives to closure are insuf?cient. Additionally, with respect to the defense's reference to "high?ranking officials havjing] made improper comments concerning PFC Manning's probable guilt and appropriate punishment," in Mr. Coombs's 131621 December 2011 email, i find that thorough voir dire and appropriate rulings and instructions by the military judge will adequately address the risk of unlawful command influence. I therefore deny the defense's request for reconsideration of my closure determination. With respect to the defense's request to exclude the media from discussion of the five topics at issue and to issue a gag order preventing other witnesses from discussing those topics, those requests are denied. 3. Invocation of Article 31tFifth Amendment rights. The recommendation i received from my legal advisor was that once witnesses invoke their Article 31 or Fifth Amendment rights, these witnesses are not reasonably K- IHV. UFCR. oft-.701 i Page 2 of 12 1-..- \r available. LTC Holzer also recommended that counsel for the witnesses be contacted to determine whether there are any areas of inquiry that the witness could respond to questioning without invoking their rights. Should it be the case that counsel indicate there are no areas that the witnesses will discuss without invoking their rights, LTC Hoizer recommended that the witness be called in lieu of relying on a written statement of their intent to invoke their rights. Accordingly, I intend to sail both SFC Adkins and W01 Batonek as noted below. Thank you. LTC Almanza On 12t14f11. wrote: LTC Almanza. lwitl be available on my cell at 1500. Best. David 3' 3 David E. Coombs. Esq. Law Office of David E. Coombs 11 South Angell Street, #317 a Providence. RI 02906 It Toll Free: 14300-58341 56 a Local: (508] 689-4615 33- Fax: (508) 689-9232 com] 3: ?*Con?dentiality Notice: This transmission. including attachments. may contain con?dential attorney-client I 6.0 I #22 723 12/161201 .v Page :01 .r information and is intended for the personts) or company named. If you are not the intended recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of this information may be unlawful and is prohibited.*? a Original Message Subject: Re: Telephonic 802 a a From: "Almanza, Paul" 2 Date: Wed. December 14, 2011 1:03 pm courtmartialdefense corn 3: 2' Counsel - Would you be available for a telephone conference at 1500 today? l?d like to discuss the issues concerning witness availability mentioned below. 1 am working on the other outstanding items. 2? LTC Almanza 3' ?2 J- ?b 3; 2} From: blockedrnailto courtmartialdefensecmn): 2- To: Almanza, Paul (1t_l]_321733 I 2r 1 65201 I Page 4 of 12 an ec .- Subject: RE: Telephonic 802 3* 2) 1? LTC Almanza. 2? 3' a a The defense objects to having the listed OCA witnesses testify by telephone. The defense's ability to question these witnesses will be frustrated by not having them in person. The defense intends to discuss cfassified information with each witness. In order to adequately do so. the defense will need to hand classified information each individual witness. As such. having the witness testify by telephone will not ensure a thorough and impartial Article 32 hearing. 3s 29 2) Additionally, the defense objects to each of the government's requests below concerning CPT Keav. SGT Padgett. SFC Adkins. Batonek. and inmate Whit?eld. The government has had more than enough time to ensure these witnesses were available to testify. The fact that a particular witness has made alternative plans should not be held against the defense given our timely request for the witness. ?9 2. Best. I) David :David E. Coombs, Esq. a a Law Office of David E. Coombs 2? 2: 11 South Angeli Street. #317 Providence, RI 02906 Toll Free: 1-800-588-4155 b- Local: (508) 689-4616 2b a Fax; (508) 6899282 2r 1* armvcourtmartialdefensecomr} 3-.- 123] 6:90] I ?15 DJ .J r'ti LII "h tJ t? WV Notice: This transmission. including attachments. may contain con?dential attorney-client information and is intended for the personls} or company named If you are not the intended recipient. please notify the sender and delete all copies. Unauthorized disclosure. copying or use of this information may be unlawful and is prohibited.*? 2} IIJOriginal Message -- a a Subject: RE: Telephonic 802 a ?a a From: "Fain, Ashden CPT USA 2* ate: . ecem er am a To: "Almanza, Paul" 2? Sir, 3* a a Good morning. The government was without email from at least 1937 Fast night a until 1030 this morning. This email serves as an update to your witness a a 2- request and other administrative issues up to 193? last night. Email is sporadic but we should be able to continue communicating through email. '3 Witness List. The government is working to finalize whether witnesses will a be available for telephonic testimony. We do not anticipate any issues with telephonic testimony of the witnesses you ruled "not available" except the a below witnesses. a a 1. We do not know whether the different original classification authorities a (OCAs) will be available for telephonic testimony and will likely not know until 13GB on 15 Dec 11 a 2. The United States requests CPT Keay be deemed not reasonably available a a and testify via telephone. CPT Keay is currently scheduled for block leave a ?a during the hearing and already has airline tickets and other non-refundable a reservations. We are working to obtain copies of his leave form and other a travel documents. 3. The United States requests SGT Padgett be deemed not reasonably available 16.0] _2-21 723 12H 6J?2ili Page 6 of 12- and testify via telephone. SGT Padgett just returned from a five month TDY for MOS re-classification training He just returned to the unit and a we expect more information from the command in the next few hours. I will a 3? forward the commander's decision about his physical presence and reason. once :2 we receive it. 4. The United States requests Mr. Adrian Lamo's be deemed reasonably available. Mr. Lamo is diagnosed with asperger This is a high 2? functioning form of autism. Based on his medical condition. he will not a 2- likely be able to relay meaningful testimony over the telephone that should 2- assist you in your investigation. and allow the prosecution and defense to adequately question him. Additionally. the witness would likely be non?responsive if testifying over the telephone. Rather than rule him a reasonably unavailable but available for telephonic testimony, the United 2' States requests the ability to produce him for in-person testimony. if he is a willing to participate in the hearing. a 5. The United States requests SFC Adkins be deemed not reasonably available based on the previously provided memorandum stating he intends to invoke his rights under Article 31. witness who is unavailable under Mil. R. Evid. 2* is not 'reasonably available.? RCM 405tglt?lth} MRE a 804(ajt1) incorporates in the claim of privilege against self-incrimination. 6. W01 Balonek is not available for telephonic testimony based on the attached email stating he intends to invoke his rights under Article 31. witness who is unavailable under Mil. R. Evid. 804tait1}?t6}. is not 'reasonably available.? RCM MRE 804(a)(1) incorporates in the claim of privilege against self-incrimination. 7. As of three months ago. Inmate Whitfield was a represented party and the United States is working to contact his civilian defense counsel to first a determine whether he is still a represented party, and then to request inmate Whitlield's cooperation with your order. The confinement facility is prepared to provide him access to a telephone for testimony. vir CPT Fein Message?~?? Sent: Wednesday. . . a To: coombs arm courtmartialdefensecom blockedma?tocoombs?armi courtmanialdefense.com); Fein. Ashden CPT USA JFHQANCRIMDW Holzer. Mark LTC MIL USA OTJAG Subject: Re: Telephonic 802 ?2 a Counsel - This provides notice that i intend to ask my legal adviser whether SFC Adkin should be produced at the hearing in light of his memorandum indicating that he intends to invoke his Article 31 and 5th Amendment rights and. if so. whether he may be ordered to testify given that the matter cited in his a memorandum is an administrative one. 2> a a Thank you 2? LTC Almanza 11> ?2 a From: coombs@armycourtmartlaldefense com) 1 6.01 _22 1 723 12116/201 Page 7? of? 12 comia 2" To; Almanza. Paul: Almanza. Paul LTC RES USAR USARC Sent: Tue Dec 13 08:3?331 2011 a a Subject: RE: Telephonic 802 LTC Almanza. 2* a The defense requests that SFC Adkins be produced at the Article 32 hearing The basis that SFC Adkins is attempting to avoid testifying is not a proper invocation of his Article 31 rights or his 5th Amendment right against a seif?incrimination. The Fifth Amendment protections only apply to in a custodial interrogation and when the individual questioning is law a enforcement. Article 31 applies only when the military questioner is acting or could reasonably be considered as acting in an official law enforcement or a disciplinary capacity. United States v. Bell. 44 Md. 4013 1996} (Article 31 requirement for warnings does not apply at trial or Article 32 a 2? investigation). SFC Adkins is attempting to invoke his Article 31 rights in a a noncriminal matter (administrative reduction) and when he is not the a subject of any questioning designed to elicit incriminating statements. He a should therefore be ordered to testify. in the alternative the defense requests that the government provide a grant a of testimonial immunity to SFC Adkins under ROM. Yer-tie). SFC Adkins is a a material witness at the Article 32 hearing. The fact that he is appealing ?2 his reduction in rank should not provide him with the ability to avoid a testifying. r: a Best. a a David 3- David E. Coomos. Esq. Law Office of David E. Coomos 11 South Angeli Street. #317 a a Providence. Rt 02906 Toll Free: 1-800-588?4156 Local: {508) 689-4616 Fax: (508} 639-9282 a ermycourtmartiaidefense *1th ?Confidentiality Notice: This transmission. including attachments. may 3* contain confidential attorney-client information and is intended for the personts) or company named. If you are not the intended recipient. please notify the sender and delete all copies. Unauthorized disclosure. copying or use of this information may be unlawful and is 221723 tensor?: 13 - . Page 8 of 13 2b a? :r Original Message -- Subject: RE: Telephonio 802 eer- ae: on. ecem er . pm To: "Almanza. Paul" 3- 3- Sir. 2* As for those witnesses you determined to be reasonably available. the 2- United States agrees with the defenses interpretation. Based on the attached memorandum. SFC Adkins is invoking his Article 31 rights. The United States will produce him it you determine his presence is required to invoke his rights. Otherwise, all the government's offered witnesses are available and the United States will check on the status of CPT Keay and SGT Padgett (defense offered witnesses} tomorrow morning. DTS should not be an issue. it they are available. Astor any witness designated as not reasonably available. the government requests to call them as telephonic witnessesconsidering their sworn statements. The United States joins the defense in the request for you to annotate for the record which witnesses you deemed not relevant or relevant but cumulative. 23' Finally. as we discussed earlier today during our conference call. the United States stands ready to coordinate the travel for those witnesses that are reasonably available or alternative testimony of each witness that a you deem relevant and not cumulative. from both the government?s and defense's witness lists. 1} 2' Thank you J- vr'r 2- CPT Fein :5 23 Message--?-- From: com} Sent; Monday. December 12. 2011 9:42 PM 2: To: Almanza. Paul; Fein. Ashden CPT USA SJA CPT USA JFHQ-NCRIMDW Overgaard. Angel M. CPT USA JFHO-NCRIMDW SJA. (ill 1 _22 723 12116320! 1 Page 9 GHQ - ?Whyle. Jeffrey H. cm USA JFHO-NCRIMDW SJA 3* a Subject: RE: Telephonic 802 3* 33 LTC Almanza. The defense received your list of intended witnesses. it is the defense?s understanding that the listed witnesses are those that you would a want to hear from during the hearing. If a speCific witness is listed as reasonably available by you. then this witness is to be produced as a live a witnesses. The defense is unsure of your intent regarding a witness that is a on your list but is listed as "not reasonably available." it appears that you are deferring to the government regarding whether these witnesses will be produced and in what manner. The defense believes that this determination a must be made by you and not the government. 25' a if the defense?s reading of your memorandum is correct. it appears that only 12 witnesses will be called at the Article 32 (one of which will invoke his 5th Amendment Right). The remaining witnesses, under the above a understanding. will testify if at all. at the government's discretion. With regards to the witnesses not listed by you. the defense requests a a ruling regarding whether these witnesses have been deemed as either not relevant. cumulative or not reasonably available. Under ROM. 405(gll2llDl. a the defense objects to the determination that its listed witnesses are either not relevant. cumulative or not reasonably available. Best. a David 3! a David E. Coombs. Esq. a Law Office of David Coombs a ll South Angeli Street. #31? a Providence. RI 02906 2? Toll Free: 1-800-538-4?l56 a Local: {508) 889-4616 Fax. (508) 6899282 a a com") ?Confidentiality Notice' This transmission. including attachments. a may contain confidential attorney-client information and is intended for the a personfsl or company named. if you are not the intended recipient. please notify the sander and delete all copies. Unauthorized disclosure. copying or a a use of this information may be unlawful and is prohibited.m Original Message Subject: Re: Telephonic 802 From: "Almanza. Paul? a a Date; Mon. December . >39} >23} 131632011 Page 10 oil? a a a i just sent the witness list i mentioned in my conversation with Mr Coombs and CPT Fein from ai Closure a a While the Defense acknowledges the general right of the public to attend criminal proceedings, such right is not Unfettered and must be balanced by the right of the accused to a fair trial. Specifically, the Defense maintains that the public's interest in five discrete pieces of evidence, which may or may not be admissible if the case proceeds to trial, a is not sufficiently overwhelming to override the accused's right to a fair trial. It is important to note that all of the cases in this area involve the government attempting to close the Article 32 hearing while the accused was attempting to assert the right to a public hearing. Here, it is the accused who is asserting his right to close parts of the hearing in order to preserve the integrity of the judicial process and to ensure his right to a fair 2' trial. The Government can point to no harm to its case based upon the defense's request. lnstead, the discussion seems to be centered on subsequent steps that a military judge can take to cure any error at the Article 32. a This analysis is misguided given the relative ease of avoiding the harm and the limited nature of the defense's request. Certainly, to the extent that we are going to err, we should err on the side of caution. In this instance. 2? a that would mean closing the hearing during those limited times requested by the defense. ?2 3 AIT Training a? The defense has attached the referenced email regarding the IT training. 23- Best, a David 31- _221723 1316901 I Page 12 of 12 a Dauid E. Coombs, Esq. a Law Office of David E. Coombs 11 South Angel! Street. #31? Providence. RI 02906 Toll Free: 1-800-583-4156 Local: {508) 889-4616 Fax: (508} 689-9282 Notice: This transmission, including attachments. 2' may contain con?dential attorneyaclient infon'nation and is intended for the 2? personis) or company named. If you are not the intended recipient. please notify the sender and delete all copies. Unauthorized disclosure. copying or 2- use of this information may be unlawful and 23- Iassification: UNCLASSIFIED 12/1680] I US. v. Manning Article 32 Investigating Of?cer?s Chronology DATE EVENT Late Jul 10 Contacted by then-Chief Trial Judge Henley to inquire whether I would be available to serve as investigating officer (did not make note of date) 4 Aug 10 Appointed to investigate original charges 5 Aug 10 Telephone brie?ng on Article 32 Investigations by original legal advisor, Mr. Mike Egan 15 Oct 10 Telephone consultation with Mr. Egan concerning status of delay, advised that the original defense delay request still stood 15 Feb 1 1 Telephone consultation with Mr. Egan concerning contacting counsel to let them know of upcoming activation and asking about length of government?s case 17 Feb 1 1 Received defense request to compel discovery 25 Feb 1 1 Received government response to defense request to compel discovery 23 Feb 1 1 Telephone consultation with Mr. Egan concerning contacting parties regarding defense discovery request 28 Feb I 1 Responded to counsel concerning defense request to compel discovery 20 Mar 1 1 Received directive to investigate additional charges and charge sheet with additional charges 14 Nov 1 Telephone conference with Mr. Coombs and CPT Fein regarding scheduling of hearing 16 Nov 1 1 Received special instructions for conducting the investigation 2.1 Nov 1 1 Reviewed memoranda directing investigation to take place and providing special instructions 22 Nov 1 1 Reviewed defense discovery request; received defense notice under M.R.E. 23 Nov 1 1 Provided Article 32 noti?cation memorandum to PFC Manning through counsel 28 Nov 1] PFC Manning provided noti?cation memorandum and motion for closed hearing under R.C.M 405(h)(3) 30 Nov 1 1 Introductory telephone consultation with second legal advisor, LTC Mark Holzer 1 Dec 11 Reviewed defense motion to compel and government response to request for production of evidence, submitted status email to parties 1 INF. DFER. 5Dec11 Reviewed evidence at MDW 6Decll Introductory telephone conference with security of?cer, Mr. Prather; telephone brie?ng on Article 32 investigations by LTC Holzer 7Dec11 Reviewed administrative matters, email to counsel regarding same 9Dec11 Reviewed defense request concerning administrative matters, email to counsel regarding same 10Dec 1] Reviewed defense request for Article 32 witnesses, government?s requested evidence list, and additional requested evidence list llDecll Reviewed ?lings concerning defense request to close hearing and defense request for witnesses IZDecll Telephone conference with counsel discussing defense closure request, defense objections to evidence and witnesses, and consideration of statements under penalty of perj ury; telephone consultation with LTC Holzer regarding defense closure request; continued reviewing evidence at MDW 13Decll Telephone consultation with LTC Holzer regarding consideration of statements under penalty of perjury; continued reviewing evidence at MDW: issued 10?s witness list; issued determination on defense request for closure; defense request that SFC Adkins be produced at hearing 14Decll Issued determinations concerning defense objections to government evidence, 10?s evidence list, considerations of statements under penalty of perjury, request for reconsideration of denial of defense closure request, defense request for media exclusion and gag order, and effect of witness invocation of Article 31/Fifth Amendment rights on their availability; provided counsel LTC l-Iolzer?s advice regarding the effect of the invocation of Article 31/Fifth Amendment rights and on statements under penalty of perjury; provided revised list of witnesses to appear in persomr by telephonefby statement under penalty of perjury; participated in telephone conference with counsel concerning witness availability and closure issues, determining that SFC Adkins, SGT Padgett, and CPT Keay would be produced in person and W01 Balonek was not reasonably available and would be available by phone lSDecIl Issued determinations regarding defense-requested witnesses and evidence; telephone consultation with legal advisor regarding R.C.M. and provided notice to counsel of reconsideration of determinations concerning CPT Liebman, CPT Worseley, and CPT Critch?eld; received government notice of l-J classi?ed hearing; provided draft Article 32 hearing script to counsel for review; participated in rehearsal of classified closure and opening proceedings; provided revised list of witnesses to appear in person/by telephone/by statement under penalty of perjury; issued determination as to defense request for reconsideration of closure request and request for media exclusion and gagorder 16Decll First day of hearing; provided rights advisement to PFC Manning and answered voir dire questions by counsel; received defense request for recusal; informed counsel of seeking legal advisor?s advice concerning request for recusal; considered and denied defense request for recusal; defense ?led writs with Army Court of Criminal Appeals seeking a stay of proceedings and my recusal, which were denied; issued revised determinations as to defense requested witnesses ITDecll Second day ofhearing; received defense request to consider sealed stipulation of expected testimony for Ms. heard testimony of SA Graham (telephonic), SA Robertson (telephonic), SA Mander (in person), SA Bettencourt (in person), SFC Madrid (telephonic), and CPT Lim (in person); issued revised determinations as to defense requested witnesses lSDeclI Third day of hearing; discussed issue of proffered stipulation of expected testimony with counsel; heard testimony of CPT Fulton (in person) SGT Maderas (telephonic), Mr. Millman (telephonic), CPT Cherepko (telephonic), SFC Adkins (in person invoked); W01 Belonek (telephonic invoked), SA Shaver (in person); conducted classi?ed closure hearing 19Dec11 Fourth day of hearing; heard testimony of SA Shaver (in person) SPC Baker (in person); Mr. Johnson (in person); discussed issue of Ms. Showman?s testimony, determined to reconsider defense request to close hearing for a portion of Ms. Showman?s testimony; received defense assertion of communications-to-clergy privilege under M.R.E. 503 for chats with Mr. Lamo 20 Dec ll Fifth day of hearing; received government?s response to defense?s M.R.E. 503 assertion; denied defense M.R.E. 503 assertion; heard testimony of Ms. Showman (telephonic); conducted unclassi?ed closure hearing to reconsider defense?s closure request and took 5 minutes of Ms. Showman?s testimony while closed; heard testimony of SSG Bigelow (telephonic); SA Williamson (in person); SA Shaver (in person); SA Edwards (in person); Mr. Lamo (in person); parties agreed at end of day to do closing arguments at 1000 22 3 December; issued reconsideration of closure determination concerning Ms. Showman?s testimony 21 Dec 1 1 Sixth day of hearing; heard testimony of SGT Padgett (in person); CPT Keay (telephonic); reviewed evidence; drafted written response to defense assertion of communications-to-clergy privilege under NLRB. 503 for chats with Mr. Lamo 22 Dec 1 1 Seventh day of hearing; heard closing statements by counsel; closed hearing; reviewed evidence 23 Dec 1 1 Reviewed evidence at received defense notice of evidence 3 Jan 12 Reviewed evidence; drafted 10 Report 4 Jan 12 Reviewed evidence; drafted 10 Report 5 Jan 12 Reviewed evidence; dra?ed 10 Report 6 Jan 12 Reviewed evidence; drafted 10 Report 9 Jan 12 Reviewed evidence; drafted 10 Report 10 Jan 12 Reviewed evidence; draftele Report; drafted memorandum excluding the days between Completed and submittele Report UNCLASSIFIED (SECRETHORCONINOFORN WIENCLOSURES) DEPARTMENT OF THE ARMY 150m JUDGE ADVOCATE GENERAL DETACHMENT (LSD) . am no ALBERT c. LIEBER CENTER ,i 5901 TELEGRAPH ROAD ALEXANDRIA. VIRGINIA 22310-3329 TO on: - e' -- AFRC-MJVA I I January 2012 MEMORANDUM FOR Recipients of Article 32 Investigating Of?cer?s Report. US v. Manning SUBJECT: Classi?ed Annex to Article Investigating Of?cer?s Report. US v. Manning I. The classi?ed annex to this Investigating Of?cer?s Report contains the following documents: a. Four classified documents marked as 10 Exhibits. IO Exhibits (CI 1 and (C I 2 are classi?ed at the level: IO Exhibit (C) 3 is classi?ed at the CONFIDENTIALINOFORN level: and 10 Exhibit (C) 4 is classi?ed at the SECRETNORCONINOFORN level. b. The summarized transcript of the classi?ed portions of the Article 32 hearing held on 18 and 19 December 201 1, marked as 10 Exhibit (C) 5. classi?ed at the SECRETWNOFORN level. 2. POC for this memorandum is the undersigned am/ Encls PAUL R. ALMANZA as LTC. USAR Investigating Officer UNCLASSIFIED (SECRETHORCONINOFORN WIENCLOSURES) luv. arse. EXHIBIT 47?? 00671 Exhibit 55 of the Investigating Of?cer?s Report (DD Form 457) is classi?ed and stored in the classi?ed supplement to the original Record of Trial [Court Reporters Note: verbatim transcript of 16 December 2011 proceedings produced by order of the Special Court-Martial Convening Authority.] [The Article 32 hearing was called to order at 0907, 16 December 2011.] I0: Good Morning. PFC Manning, I am Lieutenant Colonel Paul Almanza. By order of Colonel Carl R. Coffman, Jr., I have been appointed as Investigating Officer under the provisions of Article 32(b} of the Uniform Code of Military Justice to conduct an investigation into the charges which have been preferred against you. Before proceeding, I would like to advise the participants and persons observing that this is a formal investigation. In order to protect the dignity and decorum of these proceedings, I would ask that all present refrain from interrupting or otherwise disturbing the investigation. Should any person, nevertheless, engage in speech or conduct that interferes with the dignity and decorum of the proceedings, they may he removed from this courtroom. Additionally, the rules of the hearing provide that cell phones, blackberrys, or similar devices are not authorized in the hearing, if any person, with such a device, may be removed from this courtroom. PFC Manning, let the record show that Mr. David Coombs, civilian counsel, Major Matthew Kemkes, and Captain Paul m. 55oz. Ewan 5G Bouchard are here present with you; and I'd note that I received Mr. Coombs notice of appearance and it will be entered into the record. IO: On 23 November 2011, I advised you of this investigation and your rights to counsel in this investigation. As you are in pretrial confinement, I provided that notification to your counsel. Counsel, when was your client provided with that notification? CDC: My client received notification on 28 November 2011. ID: I've read the written documents provided to your counsel for the sole purpose of determining which witnesses and evidence would be necessary to conduct a thorough and impartial investigation. Your counsel have examined those documents. I will not consider those documents for any other purpose, and I will make my findings, conclusions, and recommendations, based only on the evidence presented during the course of this investigation. After I have heard the evidence presented by both the government and your defense counsel and arguments by the government and the defense counsel, I will forward the results of this investigation and my recommendations to the Appointing Authority. Do you have a copy of the charge sheet in front of you? ACC: Yes, sir. I do. IO: The general nature of the charges in this case are one charge and its specification alleging aiding the enemy, in violation of Article 104, one charge and sixteen specifications alleging causing intelligence belonging to the United States Government to be published on the Internet, transmitting national defense information to a person not entitled to receive it, and stealing a record or thing of value of the United States, in violation of Article 134, and one charge and its five specifications alleging failure to obey a lawful general regulation, in violation of Article 92, UCMJ. The acouser for those charges was Lieutenant Colonel Cameron Leiker. I am now going to advise you of your rights in this investigation. You have the right to be present throughout the taking of evidence so long as your conduct is not disruptive; to cross?examine any witnesses if any are called against you; to present anything you might desire in your own behalf in defense, extenuation or mitigation; to have a lawyer represent you at the investigation; to have me examine available witnesses requested by you; to make a statement in any form at the proper time, or to remain silent, or to refuse to make any statement regarding any offense that you are accused or suspected of, or concerning matters for which you are being investigated; should you choose to remain silent or to make unsworn statement, I will not hold that against you in any manner. IO: In addition, you are advised that any statement made by you may be used as evidence against you in a trial by court? martial. Before I begin the formal investigation and examination of any of the witnesses in this case, I must inform you that yOu have the right to be represented at all times during this investigation by legally qualified counsel. This means that you have the right to be represented by civilian lawyer of your choice, but at no espense to United States; the military counsel of your own selection if that counsel is reasonably available; or by counsel detailed by the Trial Defense Service to represent you during the investigation. There is no cost to you for military counsel. PFC Manning, do you have any questions about any of the rights I have described for you? ACE: No, sir. IO: Do understand those rights? ACC: Yes, sir. IO: By whom do you wish to be represented in this investigation? ACC: By Mr. Coombs and by my military counsel, sir. IO: And that's Major Kemkes and Captain Bouchard? ACC: Yes, sir. IO: Do you wish to be represented by anyone other than those individuals? ACC: Not at this time. IO: Do you still wish for these three attorneys to be your lawyers in this hearing? ACC: Yes, sir. 10: Are you satisfied with the work they have done for you up to this point? ACC: Yes, sir. ID: PFC Manning, as the Investigating Officer in your case, it is my duty to thoroughly and impartially investigate the charges against you. This investigation shall include recommendations concerning the disposition which should he made of the case. It is my duty to impartially evaluate and weigh all of the evidence. I will consider the testimony of the witnesses and will also consider the evidence of which I?ve previously notified your counsel. You and your counsel will be given full opportunity to present anything you may desire in your own behalf, either in defense, extenuation, or mitigation. Do you understand? ACC: Yes, sir. I0: I can recommend that the charges against you be referred for trial to a general court-martial or to a different type of court-martial or that the charges be dismissed or disposed of without proceeding to a trial by courtsmartial. IO: It is not my purpose during this investigation to act as a prosecutor, but only as an impartial fact finder. I am currently assigned to the 150th Judge Advocate General Detachment (LSO), United States Army Reserve. At the time I was appointed to this investigation, I had no detailed knowledge of this case, having only seen limited coverage in the media concerning the allegations against you. As I previously mentioned, I have reviewed the documentary evidence provided by the government to both me and your defense team, but solely for the purpose of determining which witnesses and what evidence needed to be produced during this investigation. Other than those actions, I have no substantive knowledge of the actions alleged, and I do not know any of the witnesses or persons involved in this hearing. I have had several written communications with counsel regarding administrative and scheduling matters related to this hearing. I have not acted in any way that would disqualify me from conducting this investigation. Does either side wish to question or challenge me? TC: No, sir. IO: Defense? sir. CDC: Yes, IO: Please. CDC: Just a few questions, initially. CDC: Do you know how the Convening Authority was made aware of your name? I0: I do not know how that occurred. CDC: Please describe to the best of your knowledge how you became involved as the ID in this case. IO: I received a call from Colonel Henley who was then the Chief Trial Judge of US Army Trial Judiciary, asking if I was available to serve as an Investigating Officer in this case. After informing him that I was available to serve, shortly thereafter I received, I believe it was in August of 2010, an appointment memorandum appointing me the IQ. CDC: And who notified you of this appointment in August? IO: That was the--the memorandum came from--it was signed by Colonel Coffman, if my memory serves, and I believe it came?? the email transmitting it came from Captain Fein. CDC: Your legal advisor is Lieutenant Colonel Mark Holzer? IO: Correct. CDC: Have you sought his legal advice on any issues? 10: Yes, I have. CDC: And briefly, could you explain which issues? I0: I sought his legal advice on several issues. As the parties know I have provided by notification as to the issues that I scught advice for as it occurred by email and through conversation. ID: The first issue that I sought advice from the legal advisor on was the issue as to the defense request for?- temporarily, I might have them out of order as there were a number of issues. It was a defense request for closure of these proceedings, I requested the legal advisor's advice on that matter. I requested the legal advisor?s advice on whether a statement made under penalty of perjury could be considered as a sworn statement over objection by the defense. Actually, I may supplement these responses later after going through my email to make sure I got them all. I also received advice from the legal adviser concerning the-?I received a communication from the legal advisor concerning the rule, provisions for defense admission of extenuating and mitigating evidence at an Article 32 proceeding. That is what I recall at this moment. I will go through my notes and supplement that answer, if necessary. CDC: Have you received advice from any other sources? ID: No. CDC: You indicated that you are a Military Judge. When did you become a Military Judge? ID: I became a Military JUdge in June of 2009. CDC: When did you attend the Military Judges course? attended the Military Judges course ins-correction, June 2010. So I attended the Military Judges course in 2010. CDC: And when was that? ID: That was April-May. CDC: During your time in the JAG, have you ever come to the JAG school for instruction, other than the Judge?s course? ID: Yes, I have. CDC: I was an evidence professor there from 2007 to 2009. Did I ever teach you in a class? ID: I do not recall. I do not, because I do not think that I attended any courses at the JAG school during that time I attended the frame. I attended the Basic Course in ?96. Reserve Advanced course in 2004. Then I attended the Judge's course in 2010. CDC: How many courts?martial had been presided over as a Military Judge? IO: Six. CDC: Briefly, can you tell me what types of courts-martial? IO: They were BCD special courts?martial. They were all guilty pleas. CDC: They were all what? as well. IO: Guilty pleas. One was a mixed plea, CDC: The mixed plea, did that involve a panel? ID: No. CDC: Who is your civilian employer? ID: The Department of Justice. I work for the Child Exploitation and Obscenity Section in the Criminal Division. CDC: And what is your position there? IS: I am a Deputy Chief. CDC: How long have you been working for the Department of Justice? IO: Since November of 2002. CDC: How many cases have you prosecuted as a member of the Department of Justice? IO: I was a trial attorney from 2002 to late 2004 and probably prosecuted in the neighborhood of 20 cases. CDC: Are you aware that the Department of Justice has an ongoing criminal investigation involving the conduct of my client? ID: Yes, partially through??I'm not sure if I was aware before reading the files in this case, but I am aware now that the Department of Justice has an ongoing investigation based on the information that I?ve read in this case. CDC: Have you been exposed to any information from this ongoing investigation? ID: No, I have not. CDC: Have you spoken with anyone within the Department of Justice about the ongoing investigation? 10 have not. CDC: Has anyone within the Department of Justice, after your appointment as the 10 here, discussed your service as the Investigating Officer? 10: No, with the exception of, of course, informing my supervisor that I needed to take military leave to conduct this investigation. CDC: Did you inform your supervisor as to the nature of what you would be doing? IO: My supervisor is a former Judge Advocate, so he knew what an Article 32 investigation was CDC: No. My question was did you inform him of the nature as far as for this hearing that you would be the Investigating Officer in the case of the United States v. PFC Bradley Manning. IO: Yes I did; and it is also in my orders that I had to submit to get military leave, it states~?my activation orders for this proceeding states, "32 Officer, U.S. V.Manning." CDC: Speaking of the orders, were you mobilized or were you just put on orders for this? IO: I was put on orders for this. CDC: When were you put on orders? IO: Wait one. [The Investigating Officer reviewed his materials.] IO: My orders are dated 2 December 2011. 11 CDC: So up until 2 December 2011, you were working as a prosecutor within the Department of Justice? IO: Correct. CDC: After 2 December 2011, being placed on orders-?-- IO: Correction, or just for clarification; my orders are dated 2 December 2011, I reported for and I was trying to do this hearing on 12 December 2011. CDC: Okay, so between 2 December 2011 and 12 December 2011, you were still working at your primary civilian position? ID: Correct. CDC: And since being placed on orders and actually here 12 December 2011, have you responded to any emails or done any work for the Department of Justice? IO: No. I have been fully engaged in this proceeding. CDC: So you?ve responded to no emails from your civilian employment? ID: I believe that is correct. I do not think that I have responded to a single one. CDC: Are you performing any work since 12 December 2011, for the Department of Justice? ID: No. What CDC: You indicated that you had some prior knowledge. prior knowledge do you have about this case? 12 was appointed as the Investigating Officer in August 2010 and I believe I was aware since the case received media generally, coverage, as to the nature of the allegations against PFC Manning. I can't give you a specificity which articles I read, or which TV coverage I may have seen, but I know I saw some articles and I know I saw some TV coverage. Since being appointed the Investigating Officer in August 2010, I've made every effort to not--like when I'm reading The Post in the morning on the way to work, or if I saw a headline that pertained to this case, I did not read the article. CDC: So prior to being appointed, what initial impressions did you have about this case based on what you heard or saw in the media? IO: Prior to being appointed? I know I recall thinking that if these allegations are true, it was a serious matter. CDC: Did you ever have any discussions with any friends or associates about WikiLeaks, PFC Manning, or the alleged leaks in this case prior to being appointed as the Investigating Officer? IO: Frankly, I don't recall. CDC: Did you form any opinions based upon what you read or saw prior to being appointed as the Investigating Officer other than this was a serious matter? ID: No, because??generally no; because, although something is reported in the paper that doesn't necessarily mean 13 conclusively it?s accurate or it?s the full story? So, I did know if true this was a serious matter but I don't believe I formed any opinions as to whether PFC Manning was guilty or innocent of these accusations. at this time the defense CDC: Lieutenant Colonel Almanza, does not have any further questions of you. However, under R.C.M. 902(a), the defense would move that you recuse yourself. A Military Judge shall disqualify himself in any proceeding which the Judge's impartiality might reasonably be questioned. Case law applies that requirement and that obligation also to an Investigating Officer. The important part here is the test under R.C.M. 902(a), is not actual bias but just the mere existence of a reasonable question about bias. The defense believes there are four reasons which independently would support you recusing yourself, but collectively mandate that you do so. The first, your position as a prosecutor within the Department of Justice. You are a career prosecutor, you have been a prosecutor with the Department of Justice since 2002. By your own admission you have prosecuted over twenty cases. This fact coupled along with the fact that the Department of Justice has an ongoing criminal investigation involving this case; which if the Department of Justice has its way, based upon the witnesses they have dragged in for grand jury testimony, that 14 they would get a plea in this case, involving my client, and have my client be one of the many witnesses that they would use in order to go after Mr. Julian Assange and WikiLeaks. CDC: Additionally, the Department of Justice has not ruled out the fact that they would take over this prosecution from the military and, in fact, prosecute PFC Bradley Manning on their own. The fact that you denied a defense request for a copy of the Department of Justice investigation, saying that it was either not relevant or too difficult to obtain also would out against the fact that you should be acting here today as the Investigating Officer. A reasonable person based solely upon this fact, listening to these facts in this case would question in fact, impartial. whether or not you are, Second, your ruling on defense witnesses. The government submitted a witness list of 20 witnesses. Every one of the government?s requested witnesses was granted, either in person or by telephone. As typical of the government, the government?s witness list just listed names, no real basis for and yet you it, just names. No basis of relevance whatsoever, granted all of their witnesses. The defense, on the other hand, submitted afterwards a witness request of 48 witnesses. A 19 page witness request listing the relevance of each of the witnesses. 10 of the witnesses were in common with the 15 government; of course, those were granted. Of the 38 witnesses that were not in common, only 2 were granted, 2 out of 38. Then this morning, magically, perhaps 2 more will be granted. CDC: To the detriment of the defense and its ability to preparecase in which the government has An offense that charged my client with aiding the enemy. carries a maximum, right now, of death, unless the government decides it does not want to go forward with a capital offense. 2 out of 38. An individual looking at this from the outside, a reasonable person would say, clearly in this case the Investigating Officer is biased. Third, your ruling on closure. The government has given notice to the defense of uncharged misconduct and other information which the defense believes would not be admissible at trial, but if made public would seriously impact PFC Manning's ability to obtain a fair trial. The defense filed well in advance a motion requesting that you close the hearing for a limited portion of that testimony. It in the defense?s mind was a no?brainer motion. No prejudice could happen to the defense if it's closed, no prejudice would happened to the government if it is closed. The only prejudice that would happen in the case is if you allowed it to remain open, and inexplicably you ruled just that. Even though the defense requested for you to reconsider that three times. Three times 16 you came back with the same ruling. No. You know what, defense, you can do voir dire at trial in order to try to find it prejudicial. Or, you can request the Military Judge give a limiting instruction. CDC: Anybody who has practiced more than a day knows both of those things are very, very unlikely to eliminate and to bring out prejudice if an individual hears something in the press and wants to hold onto. The surest way to prevent prejudice is to prevent it in the first place; which would be to close the proceeding. Which, again, with the exception of being a career prosecutor, an individual would say, ?Yes, that is a common sense outcome here.? That is the resolution that an unbiased Investigating Officer would conclude. Third [sic], your ruling with regards to the sworn Many people have wondered why we are here, statements. a year and a half later. Why we here a year and a half later, why has it taken so long? Because the government, has asked for a delay, after delay, after delay, and the Convening Authority has granted it over the defense objection. Time again, time again, time and again. Why have we had this delay, because the government needed to get original classification authorities? determination on whether or not this information was classified, That is what we waited a year and would it cause any damage? and a half to hear from the original classification authorities. 1? the government has finally given us this list, we've asked, ?Let?s get these witnesses up here. Let's put these witnesses on the stand, and let's require these witnesses to say, ?why is the stuff classified.'" CDC: ??Why is this stuff going to cause harm.?" And yet, inexplicably, the government does not want to produce these witnesses. And when the defense has asked you to do that, you have denied that. Instead, you said these witnesses could testify telephonically, maybe. The defense has said, ?That we can't do that, we need them here in person." And ultimately, you ruled that, ?No, I'm going to consider unsworn statements from these witnesses,? and when you made that ruling, the defense said, ?Wait a second, RCM 405 clearly states you cannot consider unsworn statements over the objection of the defense." The government responded to that, and the defense maintained its position. You, independently, went out and found two cases to support the government's position. When you served that on the defense, the defense responded by saying, ?Look, those cases can easily be distinguished based upon the facts; they do not support that position.? After doing that you, independently again, went out of found three additional cases supporting the government?s position, never putting the burden on the government to argue its position. The defense was placed in 18 position, not only having to argue against the government, but now arguing against another prosecutor, the Investigating Officer. CDC: Ultimately, you concluded against the clear language of RCM 405. Against the clear requirements for unsworn statements over the defense's objection, that these statements from the OCA had the indicia of reliability. A test that is nowhere in the manual, you made up a test all on your own, and ultimately concluded that, ?Yes, I am going to consider this. I'm going to consider these OCA statements thereby eliminating the defense's ability to question even why the stuff is All of this has been leaked, a year and half classified.? later, this is what we are doing. Where?s the damage? Where is the harm? That's what defense wanted to get cut today and in this hearing. And yet you, again, ruled, ?No, I?m not going to hear that." Independently, the fact that you are a career prosecutor, or the fact that you only gave 2 out of 38 witnesses requested by the defense, or the fact that you determined that, ?No, I'm not going to close the hearing, I'm going to allow prejudicial information to impact PFC Manning's right to a fair trial." Or the fact that you ultimately determined that you're going to consider unsworn statements over the defense objection. Any of those would independently support you recusing yourself, 19 collectively they mandate it. The defense is filing a motion here for you to recuse yourself, along with legal argument. One case in particular that you should pay close attention to is, United States v. George, which almost mirrors this eerily, in which ACCA said, reserve judge, a civilian prosecutor, should recuse themselves.? We request that you consider this motion, and, in fact, after doing so you recuse yourself in this case. IO: Government, do you have anything that you wish to be heard? TC: Yes, sir. The government wishes to be heard but we would ask for a short recess to review this motion that just landed on our desk. IO: Absolutely, I intend to take a recess to consider the motion but I just want to know if you wanted to be heard now before we take a recess? TC: Sir, we could wait for the recess or if you would like to we can rebut these possible issues. ID: I anticipate that this will not be a short recess, so I'm going to put the hearing on recess and we will let the parties know when we will reconvene. 16 December 2011.] [The Article 32 hearing recessed at 0934, [The Article 32 hearing reconvened at 1135, 16 December 2011.] I0: This hearing is now in session. All parties present when the hearing recessed are again present. 20 00692 Government, have you reviewed the defense's motion? TC: Yes, sir, we have. IO: Do you wish to be heard? TC: We do, sir. CDC: Sir, prior to that, I just wanted to make sure at this point that you have not made up your mind? ID: I have not made up my mind and after he speaks, I intend to hear from you, if you have any points in rebuttal. Then I intend to take a recess to make a determination. At this point I have not made up my mind. CDC: Very well. I would also like to put on notice?? the parties IO: Oh, notice, that I intend?- when I recess to deliberate, I intend to ask my legal advisor for advice as to this issue. CDC: The defense would also request that you contact the Chief Trial Judge at US Army Judiciary on the issue. IO: Okay, will do. Captain Fein. TC: Yes, sir. Sir, the purpose of this portion of the investigation we're at, is to determine whether you can make an impartial recommendation as to the charges against Private First Class Manning. The United States would like to ask you a few 21 questions and eXplore any potential bias in this voir dire process. First, regarding your position at the Department of Justice is in civilian capacity, not your US Army Reserve capacity. Are you currently a trial counsel at, or trial attorney excuse me, at the Department of Justice? ID: No, I am not. TC: What is your current position? IO: I'm deputy chief and my work concerns policy and So I do not supervise any prosecutors on a daily legislation. basis. Occasionally, I have cause to assist-?advise the trial attorneys on an occasional basis, but not on a day-to-day basis. TC: On a limited basis or even on a daily basis, at the Department of Justice, do you or have you reviewed any material dealing with Private First Class Bradley Manning? ID: No. TC: Sir, in that same capacity, at the Department of Justice, have you reviewed any material dealing with WikiLeaks? ID: No. TC: And while at the Department of Justice, have you had any conversations with any individual at the Department of Justice or any of its subordinate organizations such as the 22 Federal Bureau of Investigation, regarding Private First Class Manning? ID: No. TC: In the same regard at the Department of Justice, have you had any conversation with any individuals dealing with WikiLeaks? ID: No, I have not. TC: Sir, do you believe that you could thoroughly and impartially investigate the charges against Private First Class Manning? IO: I do. TC: Sir, in reference to the witness list determinations that you've made over the past two weeks, you chose to hear in- hearing and telephonic testimony of 15 witnesses the defense requested, correct? IO: Correct. TC: Did you follow the procedures set forth in Rule for Court?Martial 405(g)(2), on determining the witness availability? ACC: I did. TC: Did you determine if the significance of their testimony either in-hearing testimony or if they are not outweighs the reasonably available telephonic testimony, difficulty, expense, delay, and effect on military and 23 government operations as set forth in Rules for Court-Martial 405? ID: I did, in my determination document, which counsel have seen, I make determinations as to those specific issues with respect to what the defense requested witnesses. TC: Okay, sir. So did you make written IO: Yes. TC: fact for the record on the relevance and or cumulative nature of the evidence or testimony that is required under the rule? IO: Yes. TC: Is that decision, sir, subject to a Military Judge or Appellate review? ID: Yes. TC: And did you consult with your legal advisor in making that determination? ID: I consulted with my legal advisor as to the standard, like during the initial briefing, one of the things we discussed were the rules for determining availability of witnesses and I did not consult with my legal advisor on any evidence. specific matters. As I noted to counsel this morning, last night the legal adviser contacted me and just asked if I??there are two R.C.M 405 provisions and the other one escapes The two R.C.M. 405 provisions concerning and me at this time. 24 wanted to make sure that adequately considered those, and on the basis of that conversation, I reconsidered my determinations as to three witnesses this morning and so informed counsel. TC: So sir, you did consult your legal advisor on ensuring your interpretation of the rule that you were following a proper interpretation. IO: Correct. TC: Sir, in reference to the closure determination. When reviewing the defense's request for closure of this hearing to the public and media, did you follow the rules set forth in Rules for Court?Martial 405 and 806? IO: Yes, I did. TC: Did you follow the test outlined in Rule 806? ID: Yes, I did, and the main issue that was the basis for my determination was the factors as to whether other measures beside closure were considered and whether they were inadequate or not. TC: Sir, I assume, the factor that you are talking about is the test that is outlined in the Rule-? ID: Correct, and TC: Did you make a written finding? I0: I did. on that? TC: A fact that is reviewable, sir, 25 did. TC: And then, in addition to that, in that written finding, did you actually outline this Rule- the court?martial used in this hearing? the Article 32 shall be open to the public. Unless one, there is a substantial probability that overriding interest will be prejudiced if the proceedings remain closure is no broader than necessary to protect that open. Two, overriding interest. Three, reasonable alternatives to closure were considered and found in adequate. Then four, that you as the Investigating Officer make a case specific finding on the record, justifying that closure. 10: I did, and in that written discriminatiOH I found the first two elements met I found that through voir dire and appropriate instructions for the Military Judge were a measure that will be adequate to protect PFC Manning?s right to a fair trial should this case be referred to trial. TC: Sir, in that written finding, is it accurate to say that you considered the annotated discussion found in Rule for Court-Martial 806. 10: Yes, I did. TC: And sir, did you make written findings based off that discussion and the Rule in 806? ID: I did. 26 TC: And sir, did you consider, specifically, the portion of the rule that says, "By opening trials to public scrutiny, reduces the chance of arbitrary and capricious decisions and enhances the public confidence in this court?martial or Article 32 process." ID: 1 did. TC: Sir, did you consult with your legal advisor when making this determination? IO: I did. TC: And finally sir, did you consider reasonable alternatives to closure as required in the test, in the Rule under R.C.M 806? ID: I did, specifically; I considered and made findings as to voir dire and appropriate rules and instructions of the Military Judge. TC: And those are written findings in the record that will be reviewed by the Military Judge or appellate court later? 10: Should this case be referred for trial? Yes. TC: Yes, sir. Sir, now I am referencing sworn statements. In making your determination with respect to alternatives to testimony during this investigation, did you consider the rules outlined in Rule for Court-Martial 405(g}? ID: I did. 27 TC: And did you consult with your legal advisor on this issue? ID: I did. TC: Did your legal adviser provide you with legal research concerning this issue? ID: Yes, he did, and I provided his advice in the documents he provided me to counsel. TC: And sir, with this legal advice, did you determine that you would consider the original classification authority statements made under the penalty of perjury pursuant to 28 U.S.C. ?lT46, in lieu of their testimony, because they are not reasonably available? IO: Yes, that is the determination that I made. TC: And you did that, sir, pursuant to the rules set forth in Rule for Court-Martial 405? ID: Correct. TC: And finally, sir, did you make those written findings of fact concerning that decision? Yes. IO: Yes, I believe so. TC: Thank you, sir. IO: There are number of emails between the counsel, so I believe that was contained in an email. TC: So it is documented for the record? IO: Correct. 28 TC: Thank you, sir. I guess, the final part to just respond to the defense. To orally reapond, given that it is his request of you. First, this hearing, as you know is an Article 32 investigation, it is not the court-martial; therefore you are detailed here by the Convening Authority and are not, as you The defense relies know, sitting as a Military Judge at trial. on United States George. George is the basis of its argument. United States Army Court of Military Review decision was centered on reviewing the actions of the Military Judge, acting in the capacity of a Military Judge, at a military court* martial. This case did not concern a preliminary investigation- 10: But don't the rules as to recusal apply to Investigating Officers, counsel? TC: Sir, they do. The rules for recusal, but actually the holding in the case is not about recusing for impartiality. It is only dicta under Judge Johnston's opinion in the concurrence. And that opinion states, Judge Johnston?s, "That the Military Judge abandon his impartiality and became an advocate for the prosecution, as shown by his openly adversarial relationship with the trial defense counsel." Again, dicta by Judge Johnston, sir, this dicta stands for the possibility of a Military Judge, at a court-martial being openly hostile towards the defense and openly supportive of the government. The 29 defense's position using this case would be that any unfavorable rulings by Investigating Officers, or at least the ones proposed, that were made with advice of a legal advisor would be the basis recusing yourself, and the United States disagrees. Additionally, there is no prohibition with you receiving legal advice, including legal references 0: citations from your legal advisor and you relying on their legal research, and in the end, sir, the United States does not believe you have exhibited any bias in any form that you can conduct a fair and impartial investigation. IO: Yes, but isn't the test not whether the United States believes something or whether--they haven't alleged actual bias, they have alleged the appearance of bias, but isn't the test of whether a reasonable person knowing all the circumstances, would reasonably believe that the impartiality of the Investigating Officer could reasonably be questioned? and the United States TC: Sir, it absolutely is the test, believes, sir, you based off of your written findings, that are reviewable by Military Judge. This open process right now, that the public can scrutinize, that a reasonable person would believe that this voir dire process would sift out any potential bias and by your background at the Department of Justice that from having access to anything dealing precluded you, almost, 30 with Private Manning or WikiLeaks, that alone, a reasonable person would believe that you can remain unbiased. IO: Thank you, Government. TC: Thank you, sir. IO: Mr. Coombs. CDC: Just to pick up where you 10: Just a second, please. CDC: Just to pick up from where you left off with trial counsel. CDC: Again, the defense's position isn?t that in the adversarial process rulings that go against the defense would necessarily require the ID to step down. Obviously when you have a hearing and it is adversarial you are going to get rulings for you and rulings against you; and that is natUral. But as you correctly pointed out, the proper test here is not whether or not you believe you can be impartial. Certainly not whether or not the government: and certainly they do believe that you can be impartial. The test is whether or not a reasonable person would believe that you can be impartial based upon all of the facts and all of the circumstances that are known. Here it is without a doubt that you are a member of the Department of Justice. The simple fact that you are a part of the Department of Justice that has an ongoing criminal could investigation involving my client, that simple fact alone, 31 reasonable person questioning your impartiality? IO: Mr. Coombs, in the Marit, case, The Court found that the Investigating Officer in Marit was a prosecutor in another Air Force Base from where the investigation occurred. The Court essentially disagreed with the notion of the fact that the ID was a prosecutor at the time in the same entity of the Air Force, that was prosecuting the accused caused lack or of an appearance of loss of impartiality. IO: I?d note that the Department of Justice is large. I am in the Child Exploitation and Obscenity section. Our purview does not include anything related to National Security or classified material or anything that would be investigated by these allegations against the accused. So, what I ask you to do is address magi; to the point that says being a prosecutor is another?~does it create the loss of appearance of impartiality. Isn't that relevant here since I am not in any part of the Department of Justice that investigates the types of matters that PFC Manning is accused of? CDC: You'd have to take it in its proper context. ygrit, obviously, deals with an instance in which you have a civilian prosecutor in a totally separate case. In this instance you are The Department of a member of the Department of Justice. Justice has an ongoing criminal investigation. Whether or not 32 the Department of Justice is large or not is not relevant. What is relevant is what with these people here View when they look at you. Do they see an impartial person or do they see a member of the Department of Justice that as of 12 December was working out of his office. IO: But in CDC: defense received emails from you from your Department of Justice-?-? ID: CDC: --~4email address, not from your U.S. Army AKO address. Clearly indicating you still had the hat on your head as a member of the Department of Justice. That simple fact alone without anything else would cause a reasonable person to I question his impartiality.? say, ?You know what, In fact, the media has already done so. If Your Honor would??or you would like to take a look, the media has already published multiple accounts on questioning whether or not you, as a member of the Department of Justice, should even have been detailed to this case. And clearly the government?-the IO had many??the Convening Authority had many people he could have chosen from. Hundreds of people he could have chosen from, and yet he chose you; a Department of Justice person. IO: I'm going to go back?-?- CDC: 33 IO: I?m going to go back to Merit, because in MErit, the United States Air Force was prosecuting the accused. The same entity with the??the Investigating Officer in ge??E_was a prosecutor for the United States Air Force which was also prosecuting Egrig on another Air Force base. That fact, it was not found to create a reasonable-?a loss as to the reasonable appearance of impartiality. That which seemed to be on point. CDC: It?s not on point. And the reason why it's not on point is because Marit didn't involve a civilian prosecutor. The prosecutor actually prosecuting or investigating a case involving the accused. I guarantee you if that prosecutor in Marit was from an office, a civilian office, in which they had an ongoing case against Marit, you would have had a totally different outcome. ID: All right. CDC: That is something that That is the problem here. cannot be erased and a reasonable person would say, ?You know what, I have a problem with that." Especially with the fact that you??then coupled with that have ruled consistently against the defense. IO: All right. CDC: And most importantly, it is the investigation that the defense has asked for. Multiple investigations that would undercut much of what the OCAs have opined in their unsworn not 34 sworn, unsworn declarations. Yet, the defense gets none of them. Now as of 12 December, as you correctly noted, you were sending emails, even after that fact, from your Department of Justice email address, correct? IO: Right. Related to this matter from my blackberry. Correct. CDC: And Department of Justice email is your email address, obviously, as a member of the Department of Justice? IO: Correct. CDC: So even at that point you were not responding from your U.S. Army.mil address or from any other military email address? 10: Certainly the emails that I sent because of the internet access here, I had sent from DOJ blackberry, which I have with me. CDC: And all of the voir dire, including the argument of the government, goes towards whether or not they believe you might actually have a bias, but do you sitting there see how a reasonable person could question whether or not you are biased? IO: Well, that?s what I am going to be deliberating on when I go deliberate. CDC: Well, you responded to the government by saying, don?t believe I am biased." IO: No. I don't believe I am biased. 35 CDC: And now I am asking as the defense do you see a reasonable person, how they could question whether or not you are biased? IO: 1 have not yet determined that issue. That is the issue--you asked me had I made up my mind about this issue. The issue is whether I believe a reasonable person knowing all of the circumstances would reasonably believe that I lack impartiality in this matter. CDC: Well, could you see that-?-- IO: That is the determination I have not yet made. CDC: a hypothetical, could you see a person saying, ?You know what, the government got all of their witness and the defense got 2 of its 38 witnesses.? Could you see that as a fact that would cause a reasonable person to question? ID: Yes, that is one of the things that I will consider when I deliberate. CDC: Could you see where the government asked you to consider and I?ve seen the accounts~+the defense is not asking for this to be closed. We want an open hearing. We want the public to see everything. What we?re asking is for very limited pieces of information that can do nothing but taint my client?s ability to get a fair trial, that that be closed so that the Could you see where a reasonable press doesn?t publicize that. person would say your ruling allowing that to come out and 36 saying well, the defense can clean up the mess afterwards might cause somebody to say they're not fair? IO: That is also a matter I will consider when I deliberate. CDC: And lastly, given the fact that this case rises and falls on whether or not information is properly classified; whether or not it could cause harm. Could you see a reasonable person going, the determination that these people are too important to come here. The espense and the time and effort to bring Lieutenant Generals, Rear Admirals, and Vice Admirals here to back up their unsworn declarations might cause a reasonable person to say you know what, that this whole case. And now the defense can?t cross-examine any of the people who are supporting the 22 specifications against this man [pointing to the accused]. Would that cause somebody to IO: The test-?-- CDC: know what?--? ID: The test does CDC: wonder if he could be biased or not? IO: The test is not whether somebody is too important to be brought to testify but rather whether the significance of it's in the their expected testimony outweighs, there is no CDC: Exactly. These people are so important, expense, time and delay that would authorize them not being here 37 today. So could you see how somebody then might say, ?You know what, I don?t think this guy can be impartial." Lastly, the government has said a [Article] 32 is not a court?martial. A [Article} 32 is part of the military justice system. This courtroom is beautiful. Everything they have done here is to show the best face of the military justice system. This is the best we can do [turning to speak to the spectator IO: Mr. Coombs, who are you addressing? CDC: I?m addressing the public because this is a public hearing. What I am saying is if this is the best that we can do, military justice? This is an Article 32 hearing. It should be a thorough and impartial hearing. _We should go out of our way, especially given all the comments by the Secretary of State, by The President of the United States, by multiple members of the Department of Defense as to whether or not there is blood on the hands of the people who leaked this information: whether or not my client should be executed. All the public comments, all of the statements that were done initially should beg for the fact that we have a thorough and impartial hearing to actually get to the facts. Not to further hide it. Not to say, you know what he will have his day in court but the Article 32 is not going to be it. That is unacceptable. IO: Thank you both. 38 will now take a recess. Before I take the recess, I do want to note one other matter. I received a Petition for Extraordinary Relief in the Nature of Writs of Mandamus and Prohibition for action by a certain party and their counsel to After--I?m just putting the parties on notice this proceeding. of that, should he wish to be heard concerning that we could do that in a conference right now, okay? CDC: On that same note, dependent upon your ruling, I?ve contacted Lieutenant Colonel Peter Kageleiry, the all writs coordinator; along with Colonel Patricia Ham, the Chief of Defense Appellate Division. They have agreed to file a writ, assuming your ruling is not in favor of the defense to stay the proceedings in order to seek an order for the Convening Authority to remove you as the Investigating Officer. So, again, if your ruling is to recuse yourself, which the defense believes is appropriate, that won't be necessary. If not, the defense will be asking for a stay while ACCA considers the stay request. IO: Okay. Thank you. We are in recess. [The Article 32 hearing recessed at 1153, 16 December 2011.] [The Article 32 hearing was called to order at 1341, 16 December 2011.] 39 ID: This hearing is now in session. All parties present when the hearing recessed are again present. I have been informed that there are parties in the gallery that were not here earlier and so I will, again, read a brief admonition. I would like to advise the participants and persons observing that this is a formal investigation. In order to protect the dignity and decorum of these proceedings, I would ask that all present refrain from interrupting or otherwise disturbing the investigation. Should any persOn, nevertheless, engage in speech or conduct that interferes with the dignity and decorum of the proceedings, they may be removed from this the rules of the hearing provide that courtroom. Additionally, cell phones, blackberries, and similar devices are not authorized in the hearing; and if any person with such a device may be removed from this courtroom. With respect to the defense's request that I recues myself under R.C.M. 902(a), before making my determination I consulted with my legal adviser who advised me as to the a recusal is required if my standard of R.C.M. 902(a), impartiality may reasonably be questioned. He also advised that the test is any conduct that would lead a reasonable man knowing all of the circumstances to the conclusion that my impartiality might reasonably be questioned. 4O IO: Does either counsel have responses to the legal advice that I received? TC: No, sir. CDC: No, sir. But again my understanding is that you haven?t sought out or seeked advice from the Chief of the Trial Judiciary. ID: Right. As I noted in the brief session before the hearing continued; in response to the defense?s request that I also seek the advice from the Chief Trial Judge, I have attempted to contact him and that had not been successful during the recess. CDC: Given the fact that your appointment or at least the direction was from the former Chief, Trial Judiciary, your name was offered up? ID: No. What I had said was that-?the way that I had learned about my appointment was that the Chief Trial Judge had asked me if I??the former Chief Trial Judge had asked me if I was available to serve as the IQ in this case. After that conversation I received the appointment orders. CDC: Then again the defense would request that if the ruling isn't one that you are recusing yourself shortly that you hold off issuing a ruling until you have spoken with the Chief Trial Judge. 41 believe I can make the determination on the facts known to me and that request is denied. I have considered the matters raised by the defense and I am mindful of the admonition in Judge Johnson's concurrence in the George case. With that said, I do not believe a reasonable person knowing all of the circumstances would be led to the conclusion that my impartiality might be reasonably questioned. I, thus, deny the defense?s request that I recuse myself as Investigating Officer in the hearing. Now I will prepare a written determination in the response to the defense?s request and will attach that to the report of investigation. CDC: The defense would request that you also now stay the proceedings and order a verbatim transcript of today in order for that to be given as part of the defense writ to ACCA so that ACCA can consider everything that was said here today in order to determine whether or not your determinations along with your legal findings and conclusions are, in fact, appropriate. IO: Government? TC: Sir, the United States argues that we do not need stay these proceedings. We can continue with the proceedings, pending a decision by ACCA on whether to accept the writ and make a decision on that. 42 Secondly, as far as the verbatim transcript; administratively you could request the Convening Authority to order a transcript to be created, but currently under the current order it is a summarized transcript only. IO: On that note, I understand that the defense would like a brief recess to contact counsel concerning filing the writ? CDC: If your determination is that you will not stay the proceedings, then yes. I would want to have a brief recess in order for them to file the writ in order to try to obtain an order from ACCA today. ID: Right. My determination is that it is not necessary to stay the proceedings. Therefore, I will grant a recess so that defense can file the writ. CDC: I believe I would only require about 10 minutes to contact appellate counsel. IO: Okay. CDC: If for some reason I need more time than that due to where they are at, I will let the Court know. IO: Okay. Thank you. With The other thing with regards to CDC: And then, I am sorry. the verbatim transcript. We would request and Defense Appellate Division has requested that we obtain a verbatim transcript in order for ACCA to make the ruling. 43 would join in that request, noting that my authority does not extend to that. But I join in the request that a verbatim transcript of today be prepared. TC: Sir, the prosecution will take that request to the Convening Authority. 10: Do we have anything further? Counsel? TC: No, sir. CDC: Nothing from the defense. ID: This hearing is in recess. [The Article 32 hearing recess at 1347, 16 December 2011.] [The Article 32 hearing was called to order at 1509, 16 December 2011.] I0: This hearing is called to order. All parties present when the hearing recessed are again present. Before we reconvened, the counsel and I had a brief session in which we discussed various issues including the mechanics of the defense's filing a writ with the Army Court of Criminal Appeals concerning my determination or my determination as to the defense?s recusal request. As part of that conversation the defense requested that I make an essential finding of facts supporting my determination and I will now do 50. ID: I have previously stated the test for recusal as stated by my legal advisor. In addition to making these findings of fact and my conclusions of law on the record today, I intend to append a written determination to the report of investigation. First, as a civilian, I am employed by the Department of Justice as a Deputy Chief in the Criminal Division?s Child Exploitation and Obscenity Section. My section does not handle cases involving conduct of which PFC Manning is accused. Second, I was not aware of the specifics of investigation into the WikiLeaks matter before reviewing materials in my role of as Investigating Officer. Third, I sent emails to counsel concerning this matter from my usdoj.gov email account. Fourth, I stated the reasons for my denial of the defense request to produce the DOJ file in this case in my written determinations as to defense requested evidence. Fifth, while I am employed as a civilian by the Department of Justice that is investigating this matter, no aspect of my Department of Justice work in the Child Exploitation and Obscenity Section is involved with or otherwise relates to the allegations against PFC Manning. IO: Sixth, I made written determinations as to defense+ requested witnesses in writing based on my determinations as to whether the exPected testimony was necessary to make an informed recommendation as to the truth of the charges, the form of the 45 charges, and the disposition of the charges; and also determined whether witnesses were reasonably available. I also considered whether the expected testimony was cumulative to the testimony of other witnesses. after my legal adviser called me on 15 Seventh, December 2011 to discuss R.C.M. 405(f)(1l) and to ensure that I was properly considering them, I reconsidered my earlier determination as to three defense requested witnesses. During that conversation my legal adviser made no recommendations as to my determinations on defense requested witnesses. Eighth, my determination as to the defense?s closure request was made after consulting my legal adviser and providing his advice to the parties. That determination was consistent I provided the reasons for with the legal advice I received. that determination in writing, applying R.C.M. 806(bli2}. Ninth, my determination as to my ability to consider statements under penalty of perjUry under 28 U.S.C. ?1746 was made after consulting with my legal adviser and after providing his advice and cases and legislative history he provided me to the parties; and my determination was consistent with my legal I provided that determination in writing to advisor?s advice. counsel via an email on 14 December at 1418 [hours]. I did 46 limited research into the matter before seeking my legal advisor's advice. 10: Tenth, I conclude that a reasonable person knowing all the above facts would not conclude that my impartiality might reasonably be questioned. Counsel, at this point is there anything further to address? TC: Sir, the United States would like to just reflect for the record that also during the recess that the trial counsel contacted the Special Court-Martial Convening Authority and advised him of the defense?s request for a verbatim transcript and the Investigating Officer?s concurrence and the trial counsel?s concurrence. He ordered the verbatim transcript to be created but only for the sole purposes of the filing this writ; and it will only include the portions of this hearing up to this session. It will be produced tonight. IO: Thank you, trial counsel. Defense? CDC: Nothing further from the defense. 10: Okay. At this point, we are in recess. [The Article 32 hearing recessed at 1514, 16 December 2011.] [The Article 32 hearing was called to order at 152B, 16 December 2011.] 47 IO: This hearing is called to order. All parties present when the hearing recessed are again present. At this point we are going to continue with the introductory advisement pending the matter that is being presented to the Army Criminal Court of Appeals through the writ process. Then we will recess and we will reconvene tomorrow morning at 1000 hours. PFC Manning, I want to remind you that my sole function as the Article 32 Investigating Officer in this case is to thoroughly and impartially gather, weigh and evaluate all the relevant facts of this case, and to make a recommendation concerning the disposition of the charges which have been referred against you. Excuse, me. Do you have a copy of the charge sheet? ACC: Yes, sir. I do. IO: Okay. One second. TC: Sir, here is a copy. IO: That is okay. [The hearing briefly paused while the Investigating Officer retrieved a copy of the charge sheet from chambers.] IO: I apologize. I0: I have before me the charge sheet containing the I understand charges which I have been directed to investigate. you have a copy. Do you want the charges read to you? 43 ACC: No, sir. IO: Do you understand what you are charged with? sir. ACC: Yes, 10: PFC Manning, I advise you again that you do not have to make any statement regarding the offenses of which you are accused and that any statement you do make may be used against you in a trial by court-martial. You have the absolute right to remain silent regarding the offenses with which you are charged. You may, however, make a statement either sworn or unsworn and extenuation, present anything you may desire, either in defense, or mitigation. If you do make a statement, whatever you say will be considered and weighed as evidence by me just like the testimony of other witnesses. Should you choose not to make a statement, I will not draw any adverse inference from your Silence. You have previously been given a complete copy of the investigative file that has been compiled in your case. It contains many documents as they were provided, both to me and to your defense team by the government. I have previously notified both your defense team and the government of the witnesses and evidence that I wanted produced and the government counsel, Captain Fein, has indicated those witnesses and evidence will be presented at this hearing. 49 IO: PFC Manning, before proceeding further I now ask you again whether you have any questions concerning your right to remain silent, the offenses of which you are accused, your right to make a statement either sworn or unsworn, the use which can be made of any statement you do make, your right to cross- examine witnesses against you, your right to present anything you may desire on your own behalf and your right to have me examine reasonably available witnesses requested by you either in defense, mitigation, or extenuation. Before continuing, I note that classified information may be??well, first do you have any questions regarding any of those things I just stated? ACC: No, sir. ID: Before continuing, I note that classified information may he presented during this investigation. All participants in this investigation should remain aware of their duty and responsibility to protect any and all classified information entrusted to them; and also of their responsibilities in accordance with the three protective orders applicable to this investigation. Should the need arise during testimony to discuss classified information, the participants should notify the ID and the Court Security Officer so that a determination can be made whether to close a portion of the hearing for such Additionally, classified testimony. should any participant be 50 aware that testimony appears about to discuss classified matters in an unplanned fashion, the participant should immediately inform the Investigating Officer so that a determination can be made about whether to close a portion of the hearing. IO: Are there any other matters for me to decide? TC: No, sir. CDC: Nothing from the defense. IO: Okay. We are then in recess until 1000 tomorrow morning. [The Article 32 hearing recessed at 1532, 16 December 2011.} [Court Reporter's note: Summarized transcript format from this point forward under previous order of the Special Court-Martial Convening Authority.] [The Article 32 hearing was called to order at 1037, 1? December 2011.] SPECIAL AGENT TONI GRAHAM, U.S. Army, was called telephonically as a witness for the government. The Investigating Officer instructed the witness to Speak up and inquired as to whether she was somewhere where she would have privacy. The witness informed the Investigating Officer that she was located and her office and that there was no one else in the building. Assistant Trial Counsel 2 inquired as to whether the witness had any notes on materials that were relevant to this case in front of her. The witness informed Assistant Trial Counsel 2 that she did in fact have some notes that were relevant to this case in front of her. She provided the numbers that were stamped on the bottom of the documents. 51 mummbLoMI?i Assistant Trial Counsel 2 instructed the witness that if she was asked any questions anticipated the need to disclose classified information to respond that she should inform the Investigating Officer before responding. The defense counsel requested that the witness set the notes aside and that if she was to refer to the notes, prior to doing so, inform the Investigating Officer. DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: My name is Special Agent Toni Graham; I am currently the Chief Warrant Officer Two assigned to the 102nd Military Police Detachment, Criminal Investigation Division at the Schofield Barracks in Hawaii. I have been a CID agent for over 6 years and have been in military law enforcement for almost 12 years. I attended the CID Special Agent?s Course, from February until June 2005. The training included gathering and collecting evidence and how to protect, preserve, and collect, computers and electronics, storage media devices for their forensic examination. I was also an MP before I became a CID Agent. As a CID Agent, I have worked at least 100 cases per year for the last 6 years, so approximately somewhere between 600 to 1000 cases. On 27 May 2010, I received information on the investigation of this particular case from our headquarters at Fort Belvoir, Virginia, which forwarded it over to our Battalion in Baghdad, Iraq. Then we reviewed the information there at our Battalion, which was the 11th Military Police Battalion, Criminal Investigation Division. They received the information from Fort Belvoir, Virginia, which currently transferred over to Quantico. My headquarters got the information from a confidential informant. After I got the information from our Battalion, I confirmed that I could obtain a search authorization from a military magistrate. I developed a team and an investigative plan for the handling of this case before heading to the location where PFC Manning was deployed at FOB Hammer. The team included me, Special Agent Thomas Smith, he was prior Military Intelligence, and another CID Special Agent. We acquired a Counterintelligence Agent from_Langley who also assisted us. 52 From there, we traveled to FOB Hammer and briefed the chain of command and the SJA at that location with certain information we had received. We also provided them with our investigative plans, which was collecting all of PFC Manning's personal computers, government terminals, and searching his workstation, his home, and any other personal storage locations that he had on the FOB. The first investigative step taken upon arrival at FOB Hammer was canvassing his coworkers, supervisors, and any colleagues in the area that knew him and what they knew about him, just so we could have intel on who PFC Manning was, and what he did at the SCIF. We conducted two crime scene examinations while at FOB Hammer, one at his workstation at the SCIF, the 82 section, and also one in his personal quarters. The examination of the SCIF revealed where he was located, where he sat within the SCIF, the computer that he used in the SCIF, and just a general layout of the SCIF itself. The digital evidence that my team collected from that SCIF was two SIPR computers that were assigned to PFC Manning. We also collected one unclassified computer that was reported that he would use from time to time. From his GED we collected storage devices and computers. We also collected his personal computers, a hard drive, a camera, a cell phone, and I believe we collected maybe ten that were unclassified/unmarked, and we collected one secret CD that was located within a commercial CD case inside of a US Postal shipping box. A CHU is a Containerized housing unit. It is where PFC Manning and his roommate lived. The approximate distance between the containerized housing unit and the SCIF, I would say is about 100 yards, it could be a little more or it could be a little less. It was determined that PFC Manning was moved from this SCIF approximately 2 weeks before we arrived, and he was reassigned to the supply section. In the supply section there was one SIPR and one unclassified computer, which we collected. He was also known to use Staff Sergeant Bigelow's personal computer, Staff Sergeant Bigelow was the supply section NCOIC. We asked him for his consent and collected his computer. It was also determined during the course of our investigation at FOB Hammer that PFC Manning had used a paralegals secret scanner to scan documents twice. We also collected her government computer. We collected the evidence on document vouchers. We collected all evidence on the Department of the Army Form 4137. 53 Not only did we receive authority to seize all the evidence, but we also received authority to search all of the evidence that we seized. We obtained search authorizations for all of the items collected during the course of the investigation for further examination of all the items. We received authorization in two ways; we received it from the Commander for all of the government computers that we collected, and we also received consent from Staff Sergeant Bigelow for his personal computer. Afterwards, we did a search authorization to double check everything, and we listed everything on a search authorization, which allowed us to search all of the items through magistrate consent. The case was switched to CCIU, the Computer Crimes Investigative Unit, for them to be the primary investigative agency. It officially happened on 11 June 2010, and on 12 June 2010, they initiated a case number. The case was switched, because CCIU is CID's technical experts for computer crimes, and we determined that the evidence involved computer crimes, and it fit their purview more than it would have ours. When we hand off the physical evidence we do a controlled transfer, where we send all of the documentation that we had collected to the other office. So I first scanned all of the information to them, the unclassified information, and after that we mailed it by registered mail. They have all the paper documentsthe physical evidence was concerned they were hand? delivered. From the Baghdad office it was transferred to Kuwait by Special Agent Robinson, who was with CCIU, and from_there it was transferred to our evidence custodian who transported it to Virginia. CROSS-EXHMINATION Questions by the civilian defense counsel: I was the first lead agent that investigated this case. I searched the accused's CHU, I interviewed witnesses, and then I provided input that helped get search authorizations, as well as led to his initial pretrial confinement. In short, I was an essential figure in the early stage of the case, so much so that the government has made me their lead witness today. I found out about today's hearing about a week and a half to two weeks ago. I was asked if I could attend, but I am not there today because I needed approval before I could submit a travel request to that location. OBJECTION 54 a?mewat?J Assistant Trial Counsel 2 objected to the relevance of that line of questioning. The defense counsel stated that he was only trying to find out if the government offered to make this witness available for today's hearing. The defense stated they had requested that this witness appear in person so that they would be able to cross-examine her. The Investigating Officer stated that he had already made the determination that this witness was not reasonably available due to her location in Hawaii. The cross?examination by the civilian defense counsel continued in substance as follows: Before my testimony today I have reviewed all of the information that I provided CCIU. I do have that information, but I would have desk. I only reviewed the exhibits, not any of the notes before the hearing today. The military magistrate gave me authorization to search PFC Manning's CHO. I was the one who sought the authorization for the search, and I was also the one who provided the justification for the search. I do recall signing an affidavit dated 29 May 2010 which was used to support the reasonable belief that PFC Manning had classified information, had sent classified information, and would attempt to send more classified information. I have reviewed the affidavit within the last two weeks. In the second paragraph, it states, Manning is believed to have unlawfully obtained and released sensitive data including, but not limited to, and cable clearance documents onto the Internet.? In the second paragraph, I also talk about the Confidential Informant Agency that brought this information to CID. I do not know when the confidential informant brought that information to CID, I only know when I received the information, and that was 27 May 2010. I received it from my headquarters at Fort Belvoir which sent it to my Battalion at Baghdad, and I received it the same day. The third paragraph mentions, "a classified video of an Apache weapons team airstrike on l2 July 2007 which was subsequently found and reported by Reuters and is to this date available for viewing on the Internet. The video depicted an Apache helicopter firing upon civilians is released to the 55 mummanI?t public on or about 5 April 2010." I remember that. The last paragraph of the five paragraph affidavit that justified the search authorization, Stars Stripes published an article called, Wiki for a World of Secrets," on 27 May 2010. That was in my affidavit, because I thought it was ironic that it was in the newspaper the same day that we received the request and the fact that we received it from a confidential informant and it was also in the military news. It just shows that information was leaked, which Bradley Manning was saying that he did, was leaked and now over 5 billion people have viewed, and these five billion people or five million people, whatever the number was, are all unauthorized individuals. And they are unauthorized because they saw the video of the 12 July 200? attack of the Apache weapons team, because it was leaked onto the website. I used the above information to obtain a search and seizure authorization for the search of PFC Manning's work terminals and a search of his designated living area, which would be his CHU, for any and all electronic media storage equipment/devices. Those were the reasons that I gave to get the search authorization, but there are other reasons that I gave that are not in that affidavit due to the nature of their classification. The five that were just mentioned do appear in my affidavit, and that is a sworn affidavit that was provided on 29 May 2010. I stated that, information had been leaked onto the Internet." I stated that because that was information that I was provided with at that time. I don?t know exactly what CCIU has received from the evidence that I collected, I can only say that was the information that I had at the time that provided that affidavit. In the second paragraph, that was simply just background information about the confidential informant. The third paragraph talks about a classified video of an Apache weapons team. I did not know that video was an unclassified video. There were several things that the confidential informant provided us that would support an affidavit for probable cause for the search and seizure authorization that I received. I was taking the word of this confidential informant that the video that I received was classified information. I could not verify that, I could verify that Bradley Manning was deployed to FOB Hammer, he was in the military, he did have a top secret clearance, and he was a military intelligence analyst. The information that was provided to me that was information that I provided to the military magistrate to support my probable cause request. I did not know for sure whether PFC Manning was penetrating smil.mil In the first paragraph, 55 LLoNr?l Lou.) {Ill-b eammwm Moroccan". IbLh-Lblbob-nb- and sgov.gov networks for over a year, but I do know that he was deployed as of November 2009 or sometime around that timeframe through at least May I can't say for sure that he was doing it for over a year, but I do know that he was a military intelligence analyst for over a year, that was the job he was supposed to do. I wrote that based off the affidavit of the information that we received from the confidential informant that had direct communication with PFC Manning. Using this information that we just went over, the military magistrate authorized a search of the CHU, and I found things that I just discussed with Captain Overgaard, one being the DVD label 12 July 2007 chopper Reuters with the secret label on it. The DVD had a secret label on it, and you are not Supposed to have classified information in personal areas. This should not be outside of the SCIF unless he had Courier orders. He should not have had that CD in his GED in the first place. At that time I did not know that that video, and honestly still I am not sure if the video was unclassified when he released it. In my search of his CHU I only inventoried the items that I seized. We came across information that discussed gender identity disorder. We came across a folder that your client had printed about gender identity disorder, but I don't remember any articles in particular. I'm not sure whether or not he printed those articles while he was deployed. I do not recall a medical pamphlet from Canada that provided information for people living with gender identity disorder because I wasn't really focused on that. OBJECTION Assistant Trial Counsel 2 objected to the relevance to this line of questioning. The Defense Counsel stated that he was first trying to see how thorough the investigation was conducted of the accused's CHU as well as the CID investigation as a whole. But also, gender identity disorder would be relevant in that whether PFC Manning had diminished capacity at the time of the alleged offenses, which would also help to explain the circumstances surrounding the commission of this alleged offense. The Investigating Officer stated that the objection is overruled, instructing the defense counsel to focus on the rest of the investigation. The CROSS-EXAMINATION the civilian defense counsel continued as follows: 57 I remember seeing several things about homosexuality and gender assignment, but I really was not focused on that. I was only focused on the gathering and disseminating of classified information aspect of the investigation. I am a criminal investigator, so I only focus on that. Yes it is nice to know everything about someone when you are interviewing them so you can get to know them and talk to them, but I was not focused on that particular aspect of his life because we had already advised him of his rights and he invoked. I left that information in his room because it was not particular to my investigation. I was the one that determined that it was not particular to my investigation. OBJECTION Assistant Trial Counsel 2 objected to the relevance of this line of questioning. The Investigating Officer sustained the objection stating that this line of questioning expands beyond the investigation. The Investigating Officer instructed the defense counsel to continue with the line of questioning as to it applied to the investigation. The CROSS-EXAMINATION by the civilian defense counsel continued as follows: We skimmed through the information in the folder and then we put it to the side with the rest of his belongings. Anything that didn't pertain to the specific reasons why we were there for the investigation we set it to the side. We concluded that it didn't pertain to the investigation because we already knew prior to arriving at FOB Hammer that PFC Manning was a homosexual and that he was interested in those topics. My team and I conducted several canvas interviews and we interviewed approximately 5 people on sworn statements, everyone else was canvas interviews. All of the interviews were done face to face. I do believe that PFC Manning did not have a lot of friends in the unit, he had very limited amount of friends. OBJECTION Assistant Trial Counsel 2 objected to the relevance of this line of questioning. 58 The defense counsel stated that he was going through the steps in which the special agent conducted her interviews. The Investigating Officer granted the defense counsel limited leeway for that topic. The cross-examination by the civilian defense counsel continued as follows: I did not ask the people during my interviews whether or not PFC Manning was gay. interview, time was don't ask don't tell. They did not bring it up during the in fact I still think that the Army policy at the No one that we interviewed in a unit mentioned to us that he may have had behavioral health issues. investigation. I have never attended a pretrial confinement hearing, We did not find that out until later on in the did not attend the pretrial confinement hearing that was done for PFC Manning. I was aware confinement hearing on 29 May some paperwork for them. The affidavit was the information the affidavit. that there was a pretrial 2010. information that was contained in that I had at the time I drafted I do know that I drafted REDIRECT EXAMINATION Questions by Assistant Trial Counsel 2: At the time that I made and signed the affidavit, the information was received from a confidential informant who had direct contact with PFC Manning. OBJECTION The defense counsel objected to Assistant Trial Counsel 2's line of questioning stating that it was leading the witness. Assistant Trial Counsel 2 stated that the rules do not apply at an article 32 hearing. The Investigating Officer stated that he realized that the rules do not apply but asked that Assistant Trial Counsel 2 use open ended questions. 59 and I OmmquIanH or?I l?lHHi?l rho-loo: MNr?il?I FR) NM bu} LAJLLILAJLU ?ab-bitude LuMi??Clk?m phi-thun- some. The redirect examination by Assistant Trial Counsel 2 continued as follows: The information that I based the majority of the affidavit on was provided by the confidential informant, who had direct contact and communication with PFC Manning. To verify the information given to us by the confidential informant we were able to run military checks which is basically finding out who PFC Manning was, what he did in the military, and certain background things on FaceBook. Also, I believe the FBI had direct contact with the confidential informant, and the FBI is a reliable source in our investigation or in any investigation that we do. So the confidential informant reliability was verified in my mind. At the time, I thought the Apache to be classified, and, even at the time I was conducting the investigation, I believe everyone was under the assumption that it was classified information. I don't know when it was unclassified. There was evidence that it came from a classified system, I spoke to a captain in the 82 section, who said that when she returned from block leave in April 2010, she had a conversation with PFC Manning about the Apache video that was leaked; OBJECTION The defense counsel objected to this line of questioning stating it was hearsay. The defense counsel went on to say that hearsay is allowed in an Article 32 hearing if the source is deemed reliable. The Investigating Officer overruled the objection. The redirect examination by Assistant Trial Counsel 2 continued as follows: I believe her name was Captain Martin, who worked in the 82 shop, when she returned she had a conversation with PFC Manning where they discussed the leaked video that was on the news. PFC Manning informed her that he thought the video was real, she said, "No, I do not believe the video is real." So at that point he sent her an e?mail on SIPR, pulling the video from their SIPR shared drive and e?mailing it to her so she could compare it to the news article. In my mind it meant that video was on the SIPRNET at that time, so it was secret. 60 mdmmubLUMH The Investigating Officer informed the government of his determinations concerning evidence, that the defense has certain objections concerning the CID case file and that one of them was based on authentication, that he would consider documents subject to authentication. The defense counsel stated that it was strange that the Investigating Officer would tell the government that it was their chance to get a document authenticated to this witness. Investigating Officer stated that he was simply reminding the parties of the determinations that he has made and objections that were made concerning evidence. [The witness was permanently excused, duly warned, and ended the phone call.] SPECIAL AGENT CALDER ROBERTSON, U.S. Army, was called telephonically as a witness for the government, was sworn, testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I am the special agent in charge of the Europe branch office, CCIU, department CID. I have been a special agent for CID for 10 years. As a CID agent, I have worked about 350 cases. I have been a CCIU agent since March 2006 and that is the Computer Crimes Investigative Unit. CCIU's primary mission is the criminal investigation of intrusion and related malicious activity involving U.S. Army computers and networks. I have had approximately 660 hours of training at the Defense Cyber Investigative Training Academy. The training included pretty much everything from this is a computer all way up to conducting full forensic examinations. I am currently a certified Digital Forensic Examiner. I have worked approximately 120 cases as a CCIU agent. I became involved in the investigation of PFC Manning in late May 2010 because I was the closest CCIU agent to Iraq. I was notified to travel around that timeframe, it was about 29 May 2010. At that time, I traveled to Iraq in which I made contact with elements of the special Baghdad CID office and the lead investigators. That is when I took control of the digital evidence that had been seized concerning the investigation. I preserved that evidence, conducted preliminary examinations as time permitted, and then ensured that evidence 51 got to the controlling evidence room. I believe the evidence was transported to Camp Liberty by the agent from the central Baghdad CID office that traveled out to question him. It was secure when I arrived. I never traveled to FOB Hammer. Camp Liberty was the best location to do the work at the time; it had the most base and the best security. Captain Cherepko, who is located at FOB Hammer, assisted me. He was the Brigade automatiOn officer and collected some logs for me at FOB Hammer. I believe Captain Cherepko collected or preserved the NIPR and SIPR legs at FOB Hammer. I didn't collect the evidence specifically, at least not the original media. My role was to obtain forensic images of the evidence and then conduct a preliminary investigation if time permitted. Before I started to assess the evidence, I verified that the evidence vouchers didn't have any attachments. OBJECTION The defense objected stating that if the witness was going to testifying from the documents, the witness needs to have his memory refreshed in the proper format. The Investigating Officer stated that the rules of evidence do not apply at the Article 32 proceeding; however, if the witness can review the document to testify on the basis of his memory, that would be preferable to him reading from the document, and that once he has finished reviewing the document to set aside his notes. The witness informed the Investigating Officer that he was finished reviewing his notes and that he has set them aside. The direct examination by Assistant Trial Counsel 2 continued as follows: The physical evidence that was collected and set aside for me when I arrived was the laptop of Staff Sergeant Bigelow, the personal laptop of PFC Manning, the personal external hard drive of PFC Manning, several optical discs, to include one that was marked secret, we had two SIPR machines and one NIPR machine that were assigned to PFC Manning from his unit, we had a NIPR and a SIPR machine from the supply room where PFC Manning worked for a time, and we had the SIPR machine of the Soldier from PFC Manning's unit. All of the evidence was assessed, and I obtained forensic images of the evidence and then as time permitted conducted preliminary forensic examinations on working copies of the forensic images. At that time, the evidence was 62 mdmt?meD-t sealed for transport to the CID office. Imaging the evidence entails removing the hard drive from the particular device. Or if the hard drive was already out of the device they don't have to remove it, you take the hard drive and connect it to a forensic computer. For this investigation, I was using forensic laptops, so I connected it to the forensic computer, at that time you use a program called, to obtain a forensic image. A forensic image is a bit for bit copy of information that is on the device, and then we move a copy off for the collection of evidence and a copy off for transport for redundancy. We do that to ensUre that we do not have a catastrophic loss of evidence en route back to the laboratory. To verify that we made an exact copy we use two different methods; we have an MDS and a method that produces either a 32 or a 40 character alphanumeric unique representation of the data on the device. In layman's terms, it is a unique representation, a digital fingerprint, of the data that is on the device. The software reports that the forensic image is an exact match of the data that is on the device. We had proper authorization from the military magistrate. I took forensic images from all the devices that I mentioned, and only one of the optical disc, the CD that was seized from PFC Manning's room marked secret. I also did a cursory analysis of that evidence. I had a certain amount of time to perform preliminary analysis on some of the evidence. The goal of a preliminary forensic exam is essentially to give the investigators a head start to come up with any of these that are obvious that you could pick out relatively quickly. CROSS-EXAMINATION Questions by the assistant defense counsel. I was not involved in the collection of the evidence. I did the forensic imaging of that evidence; it was mostly procedural. I collected the hard drives from the laptops, all of the evidence was collected by other agents. When I traveled from Germany to Iraq to collect the evidence it was all ready for me to do my analysis, that is, of the evidence presented to me secured and sealed. I do not know that this computer was assigned to PFC Manning directly. I took the word from the investigating agents on ground at the central Baghdad CID office. I do not know if his computer was used by other Soldiers, that information would have been discovered during a full forensic examination as I stated earlier. The difference between imaging and analysis is imaging is simply obtaining a copy of all of the data that is on the device. A full forensic but 63 examination can take anywhere from weeks to months, that is a scientific process where we go through the media and attempt to determine whatever the forensic request is for. I did preliminary analyses on some of the devices, but I was not involved in the full forensic examination. At the time that I did the forensic imaging my certification was up-to-date and in good standing. All of the forensic imaging that was done in Iraq was done by me with the help of others. Forensic imaging was done by me in Iraq, not at Fort Belvoir. Beyond forensic images, I did a preliminary forensic examination, the information that I found was recorded in the agent investigation report that I referenced. Just to clarify, I did a preliminary report not a full forensic analysis report. Whether or not the computer that I did the forensic imaging on were CAC card access computers would have been brought out during full forensic examination it wasn?t something that I was able to pull. I can only say that at least one of the computers was not password? protected, that would be the laptop of PFC Manning, the personal laptop. I did not have Captain Cherepko involved with one of the forensic images. I did have a telephone conversation with Captain Cherepko; I had several telephone conversations with him. I did not, during any of those telephone conversations, instruct Captain Cherepko on how to conduct forensic imaging, and I believe the other individuals from my unit walked Captain Cherepko through the process of obtaining and securing network logs. A good deal of the time, my unit has asked individuals that have IT training or an IT background to obtain network logs. If we are on ground we will go get it ourselves but a lot of the times we have to have those log secured very quickly. I do not recall sending any software products or instructions to Captain Cherepko. During my work on this case, I do not recall coming across any evidence that PFC Manning suffers from gender identity disorder; I don't believe that I am qualified to make that determination. I am familiar with the name Breanna Manning though I cannot say in what context, during my work on this investigation I can?t say that I came across any information that would lead me to conclusively say your client created another identity. I know that PFC Manning had a history of disciplinary problems within his unit. I know that PFC Manning referred to himself as fragile in his chat logs, and I know that he had disciplinary problems at his unit; but, outside of that, I don?t know. I don't know if PFC Manning was gay; it was not the focus of my investigation. OBJECTION 64 ooqoxmemMI?I Assistant Trial Counsel 2 objected to the line of questioning stating the defense oeunsel needed to focus his line of questioning to specifically the evidence that was obtained and reviewed. The defense counsel stated that he believed that he was asking whether during the witness?s work on this case whether he came across any evidence that indicated the question that was asked. The Investigating Officer stated that the defense counsel needed to keep his questions focused on the investigation that was conducted and what was determined as a result of that investigation. And that since the investigation conducted by the witness could have found information pertaining to the sexual orientation of PFC Manning the witness was instructed to answer the question. The cross-examination by the assistant defense counsel continues as follows: During my work on this case I did not come across any information that would indicate that PFC Manning was gay. I am familiar with what is called the Global Address List. It was not a part of my work on this case. I do not recall coming across any evidence that reference the Global Address List. On the computers that I worked on I found that with some of the computers PFC Manning had an account on those computers. I don't recall there being other user profiles on the computers that I worked on in this case. REDIRECT EXAMINATION Questions by Assistant Trial Counsel 2: Captain Cherepko was the Brigade automations officer. For CCIU, Captain Cherepko secured some network logs, these are essentially the digital communication between computers and devices on networks. To my knowledge, Captain Cherepko did not image anything. I did not travel to FOB Hammer, because it was decided by my leadership that the mission could be handled by the individuals there. and [The witness was permanently excused, duly warned, ended the phone call.] 65 momma-Lower [The Article 32 hearing was recessed at 1232, 17 December 2011.] [The Article 32 hearing was called to order at 1349, 17 December 2011.] The Investigating Officer called the Article 32 hearing to order, and stated that all parties that were present prior to the hearing being recessed are again present. The Investigating Officer then advised the spectators that all media devices were not allowed in the hearing. SPECIAL AGENT MARK HARDER, Computer Crimes Investigative Unit, was called as a witness for the government, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I initially became an Army CID Special Agent in 1994. I have been a military agent as well as a Army reserve agent, and now a civilian agent during that time with a break of about seven years total, so approximately 10 years. As a CID agent, I have investigated approximately 200 cases; these were cases that were assigned to me as well as other CID agents. I have been with CCIU for 4 years in February. CCIU agents attend training at an organization called the Defense Computer Crimes Center, and we take courses that relate to collection of digital evidence examination of computers and forensic software as well as computer network investigations, so in total probably in excess of 300 hours of training. I have worked approximately 20 cases as a CCIU agent. I became involved in this particular case from the initial notification, which then resulted in the Camp Liberty CID office opening an investigation, and when the investigation was transferred back to CCIU, I was involved from pretty much the beginning. My role was that I was one of the case agents on the investigation. Initially, the allegation was that there was a Soldier in Iraq that was committing various crimes and CID typically by policy, if there is information that comes into one office relating to another location, it is typically the CID office closest to that location where the suspect is that will initially open up the investigation. So that was the reason why the Camp Liberty office initially got it. It was transferred to CCIU because after the Camp Liberty CID office did their initial investigation it was determined that there was going to be a need for federal magistrate search 56 warrants to compel companies such as Google and other providers in the United States to provide information. And a federal magistrate or federal judge would not be available to the agents and Iraq, generally speaking. Additionally, there were going to be CONUS based leads, people that we want to talk to for information to be gathered in the United States as well as the technical subject matter was most suited to CCIU. The majority of the evidence was hand carried by the evidence custodian from the CID element in Iraq to Dulles International Airport when I met him on ll June 2010, then I personally took custody. We inventoried all of the items that he hand-carried and then I took possession of them and turned them into the CCIU evidence room. investigative plan for this case. Because the investigation was transferred to CCIU before we physically obtained the items that were collected in Iraq, the majority of the investigative plan was based off of the Internet chats between Mr. Lamo and PFC Manning as well as other documents that were obtained from PFC Manning's personnel file. CCIU obtained the Internet chats between Mr. Lamo and PFC Manning from Mr. Lamo. One of the agents in our office had traveled to California to where Mr. Lamo lives and collected a computer as well as hard drives in another computer that Mr. Lamo used and on those hard drives were the versions of the chats. It is my understanding that corresponding versions of the chats were found on the property collected from PFC Manning. In the chats between PFC Manning and Mr. Lamo were mention of numerous subjects, specifically a 2007 Apache airstrike video, there was information about Iraqi war event logs, information about a video of an airstrike that occurred in a place called Gharani, Afghanistan, there was mention of documents pertaining to the detainees at Guantanamo Bay, and the last thing that I remember was the mention of State Department cables. At this point, we had an The Gharani video was believed to have been on a folder, Or a set of shared folders, that was owned and managed by the organization Central Command. Initially, one of the agents from CCIU attempted to go to that location across the SIPRNET network from a computer at CCIU and download those documents. He then took the documents and preserved them on an optical disc and that was collected as evidence. As a result of that, the forensic team at CCIU looked at the collected information and determined that it was not sufficient?-there was not a complete copy apparently. So several weeks later, two agents from CCIU were sent to CENTCOM headquarters, in Florida, where they obtained log files as well as copies of the folders the files 6? mummanH the documents that we were interested in that were related to the investigation. Several weeks later another agent had gone to CENTCOM and met with the deputy SJA of CENTCOM, Lieutenant Colonel Schmiddle, and interviewed him and he provided background information in regards to the Gharani airstrike incident as well as he also provided a password to an file. In the file name was and that was believed to be the Gharani airstrike video. At the end of July 2010, Mr. Lamo had contacted CCIU related that he had become aware of chats on the Internet that were being conducted by someone he did not know and he could not identify, and the individual is basically bragging that he was a part of the original effort related to that video because it was as well as the individual had mentioned that he worked for DOE at the time which we believe was the Department of Energy. After several days of follow-up investigation, Mr. Lamo was able to provide additional information which identified the individual who was chatting as a Mr. Jason Katz. We had been in contact with the Department of Energy previously about the information but with the name we were able to identify the person, Mr. Jason Katz, who has been employed at the Brookhaven National Labs, in New York, it is a facility that is run by the Department of Energy. He was employed there from approximately February 2009 until March 2010 and we learned that he was fired or terminated from his position in March of 2010, and the reason for the termination was him engaging in inappropriate computer activity on the Brookhaven National Laboratory network. And we learned all of this from the Department of Energy. Additionally, as a part of their investigation into his computer misuse, they had obtained a forensic image of his personal computer, a laptop that Mr. Kats owned, and apparently connected to the network at Brookhaven National Labs. They also obtained a forensic image of the government workstation that Mr. Kata had been assigned. The image of the government assigned computer was through some sort of user agreement that was preSumably signed by Mr. Katz on condition of his employment there, as well as the personal computer was also imaged under a similar agreement which he had signed and related something to the effect that any devices or computer connected to the network they would have the ability or authority to search and seize. As a follow-up to the information that I just mentioned CID and the FBI obtained a federal magistrate search warrant to seize and search the images that were mentioned. On the government workstation that was assigned to Mr. Katz, or on the image of the government workstation, when it was examined was a file called B.zip, and 58 within that file was another file called which is a video file. The file was and password protected. The file was believed to be the Gharani video file. The password obtained from the Lieutenant Colonel at CENTCOM opened the file that was found on Mr. Katz's computer, and the file appeared to be the same video. About the second week of June, two CCIU agents were sent to the State Department, and they obtained server log files showing all IP addresses or accounts that were connected to the location where the State Department cables were stored. Several weeks later we also obtained the firewall logs from the State Department showing connections into and presumably out of their network. During the initial attempt to get log files in June, one of the personnel who worked at the State Department that was assisting in the effort had also identified that PFC Manning had an Intelink account. Intelink is essentially a search engine that resides on a SIPRNET network that allows us to search for classified documents on the SIPRNET network. Then the CID collected the Intelink logs; there were several efforts to collect logs from Intelink; I went to the office which manages Intelink and collected a disk containing log files from the personnel there. Those log files were based on IP addresses that we believe PFC Manning?s assigned government workstation in Iraq had used. I went to, I believe it is the office we've referred to as the ODNI, the Office of the Director of National Intelligence. We also collected logs from the CIA. The other efforts to collect additional logs from DDNI related to the Intelink account of PFC Manning or the IP addresses that he used or keywords that we were interested in knowing if someone searched for them. Yes, we also collected Centaur logs also based on IP addresses that we believe PFC Manning's government workstation in Iraq had used. Centaur is the government's name for essentially what in the industry we would probably refer to as net flow logs, and essentially they are connection logs showing the to or from IP addresses and the amount of traffic and the times and dates at which connections are made to and from government networks. About 18 June 2010, I was involved in contacting and interviewing PFC Manning?s aunt Ms. Deborah Van she lives in Potomac, Maryland, and that information was identified through Manning's personnel file, because her address I believe was his home of record at the time. Yes, four other agents from CCIU as well as Department of State and I interviewed her. We had traveled to her home and interviewed her in regard to PFC Manning. We discussed a situation that he was involved in that 69 mummwaI?a happened 18 June 2010. We discussed a wide range of topics, basically how PFC Manning grew up, his family, where his mother was from, his father, how he had grown up, his time before he had joined the Army, as well as the circumstances which led up to him joining the Army and then we also discussed some contacts she had with PFC Manning while he was in Iraq. Specifically, prior to his apprehension in Iraq he contacted her and asked about the 200? Apache video in regard to how the release of the video is being received in the United States. The second contact that he had made that we discussed here was shortly after his apprehension by CID in Iraq, he had apparently contacted her and asked her to make a posting to his Facebook page also referencing the 2007 Apache video. We also searched PFC Manning aunt's house since it was listed as his home a record. Again, there were four other agents and I and PFC Manning?s aunt identified his property or things that he had left behind before he deployed were contained in a basement room of the home. Three of the agents had gone down to that room and look through the various items that were there. Specifically, we were looking for any digital media or potential packages that he may have mailed that we were aware of that she said that she had received during the time that he was in Iraq. Ms. Van had identified a computer in her bedroom that had been powered on and connected to the Internet, belonged to PFC Manning; however, she said that she did not have any access to it and did not know the computer?s purpose or what was contained on it, and we collected the computer. Several months later, I believe it was in October, we were concerned at the time about a package that had been sent from the confinement facility in Kuwait where PFC Manning had been held. It was our understanding that when PFC Manning was apprehended, after his apprehension he was transferred to Kuwait and placed in a confinement facility in Kuwait. As procedure, they collect all of your personal items, clothing, your wallet, things of that nature, and they are then placed in the container. We were concerned about those items because we didn?t know if perhaps there could be something in those items of value to the investigation. So we made every effort to get a military magistrate search authorization to look into that container. Unfortunately, due to administrative issues, that could be completed prior to PFC Manning being transferred to the United States to another confinement facility. As a result of his transfer, the standard operating procedure for the confinement facility is to ship that personal container with the personal items to the prisoner?s home of record. So, based on that, we had identified that that box had been received by his 70 aunt; it was signed for by PFC Manning's father and consequently we made another attempt to contact her to see if she had received that box, if it was still intact as well as also concerned about potentially looking for any other items that may be in the basement room since it was several months from the initial investigation, we knew more about the case at that point. The aunt had basically saved the box. The container of the personal items that was shipped from Kuwait was intact in the box that they were sent in. The box had been unopened. She also allowed us to go into the basement room and conduct another search of any items that may be of value. During the initial time that we had been out to PFC Manning's aunt's house in June, we had been in the basement room, prior to her mentioning the computer upstairs. In June, basically there were items thrown about, clothing, books, various things; there was no organization. The second time that we had been to her home she had organized all of PFC Manning's personal items into plastic containers and during the process of looking through those items those containers and furniture we identified numerous pieces of digital media various memory cards as well as hard disks and various optical media discs and all of those items were collected. Of the various memory cards there was one card which was an SD memory card which contained various bits of information but some of the information was classified. During the search, myself and Special Agent Wilbur, who also works at CCIU, had split up the room into two parts and each of us searched one half, and as we identified digital media we would photograph it where it was found and then all of the digital media was placed on the bed that was in the room and at the end of the search we asked Ms. Van if she could look at the items and ensure that all of those items were the property of PFC Manning versus one of the other family members or herself, because we didn't want to collect any extraneous property that was not related to the case. All the items that were collected she verified as belonging to PFC Manning to include the SD card. CHESS-EXAMINATION Questions by the assistant defense counsel: I was a case agent on this case. Normally, in a CID investigation you have typically one agent who was assigned the case. They are the case agent and generally manage the leads and other investigative activity involved in the case. However, this case was unlike any other case that I have been involved in 71 my career as a CID agent, in that it was fairly complex, there were numerous locations where activity occurred, investigative activity, as well as the case was very high profile case. In this particular instance, I would describe myself as the case agent on paper; however, supervisors took a more active role in kind of managing the case such as leads and information related to the investigation. Generally speaking, either Special Agent Ames, who was the acting special agent in charge of our office, or Special Agent King, who was the acting operations officer. What I did in this investigation was I secured search authorizations, to do interviews of unit members and others, performed administrative tasks, and on the first item I would say not just search authorizations but federal magistrate search warrants as well. In some cases, such as the computer that was mentioned that was taken from the first visit from PFC Manning's aunt house, we actually collected the computer with her consent and then obtained a federal magistrate warrant afterwards and then we were able to search the contents of the computer, but generally speaking yes we would obtain the search authorizations or warrants first and then collect the items later. I did not perform any of the analysis that was done on the media that was found in Iraq by Agent Shaver, Mr. Johnson, or Special Agent Williamson. And that would include the chats there were discovered from Mr. Lamo, the mention of the information about the detainees at Guantanamo Bay, the Gharani video, the cables, and the July 2007 Apache weapons team strike. I did not conduct analysis to get the information. I was not the agent that went to look at the paths for the Gharani air strike, and that same agent had to go to CENTCOM headquarters, that was not me, I believe it was Special Agent Wilbur from CCIU and at this time I do not remember the other agent's name; however, all of that should be in the various reports that were published on those activities. Later on, when and agent went back to CENTCOM headquarters to talk to the deputy SJA, that was not me, that was Special Agent Ames. Special Agent Ames was my supervisor at that time the other agents were peers, coworkers. I was not the team leader that directed those other agents to go and do different tasks. Mr. Lamo was primarily contacted or interacted with Special Agent Edwards of CCIU, and in regards to Mr. Kat: I do not believe that any members of CCIU directly contacted Mr. Kata, I believe that was the FBI. I do not know when Mr. Katz had or how he obtained the zip file or the .wav file that I mentioned earlier. Mr. Katz, as far as I know, didn't contact Mr. Lamo. I don't know if they had any direct communication. I do not know if they ever spoke at all. Mr. Lamo probably started cooperating with CID at the end of May 2010; he had provided us the information which initiated the investigation. and 72 I did not accompany either group of agents that went to the State Department in the first group agents that went there to collect log files and then the other files provided to us by the State Department. I did not do the forensic analysis, I did not do the leg work as far as the Gharani airstrike, the stuff dealing with Mr. Lamo, or the cables: this is just information that I hear because I was part of the team. I did go collect Intelink logs, and I did follow up on of the CONUS leads. When I went to go see PFC Manning's aunt and we talked about a wide spectrum of things involving PFC Manning. That information, about how he grew up and why he joined the Army, did not appear to be relevant to our investigation, it may have been the reasOn why they asked us to find out if there is any information that would identify or be of evidentiary value, such as previous foreign contacts, maybe friendships that he had with foreign nationals, things of that nature. Because at the beginning of this investigation, when were we talking with PFC Manning's aunt, there was a great deal of concern that there could be a foreign intelligence service involved. My main purpose in conducting the interviews was to look for information to prosecute PFC Manning or others who may be involved. I thought it was relevant to look into PFC Manning background as a child and right before he joined the Army, because that could give me some leads. In one of the things that we identified I believe it was through his military records was that he had lived overseas over in the UK and nearly immediately prior to joining the 0.8. Army. In the course of this investigation there were approximately 100 people interviewed by CID. In several instances we would call back for a follow?up interview. We interviewed some people five or six times and they became irritated by the amount of times that we interviewed them, but it is not typical for us to call someone back five or six times and as I mentioned this is not the typical investigation. One of the issues that we had was that when people were initially interviewed, we had not, in some cases, conducted any forensics, or in other cases, we have conducted forensics, and they will still ongoing. So what would typically occur was the agents who were conducting the forensic examinations would identify information that they thought would be relevant, maybe an e-mail sent to someone, or some other bit of information that we would then go back and contact people that we have spoken to before with new information to ask them about so that would be the reason why we have spoken to people numerous times. At one point this was the only case that I was working on personally. Probably from 9 June until probably sometime in November I would think, full?time. I had other cases that I had prior to this 73 mummawmw case beginning and I would try to keep Up with those to try to keep those moving forward. There are several other people that are identified as civilians which I believe the FBI has the primary responsibility for as far as investigating further those people were identified as potentially involved, I don't know the status of those investigations those are with FBI as well as depending on if you want to consider the founders, owners, or managers, of the website WikiLeaks involved. It is my determination that the founders and managers of WikiLeaks were involved in this case. They are involved in certain aspects. It would depend on which charge we are talking about there were some things that he had done that I believe he could've done by himself that do not involve others and other charges would require some interaction with others. From my law enforcement background, training, and experience, I do believe with your client possessed the ability to upload hundreds of thousands of documents to the world from his CHU in Iraq. He could have uploaded it to an infinite number of websites. To me, the capability would include a connection to the Internet, the information, and the knowledge to do so and I say that he does possess all three of those. He would not require the cooperation of the person who ran the website if he was the one who owned the website. I do not remember if he did possess a website which would allow him to do that while he was in Iraq. Well let me rephrase that I do believe at one point that there was some discussion about a Mobile Me account which is an Apple? based cloud computing type area that you can post files to. I did not find any evidence that PFC Manning had done that. Mr. Lamo had contacted CCIU and indicated that an unknown individual was chatting with someone else that I believe he knew in some regard. I don't know if he had ever met that other person. The other person was boasting that he was involved in an effort to a video file. I am not fully aware of how Mr. Lamo came to the information. The initial information which started the investigation was brought to our attention from an individual that Mr. Lamo had talked to. As a matter fact, there were two avenues which this information was reported. Mr. Lamo had apparently told a gentleman that he worked with on some type of project as well as he also told the individual that was a friend of his that had been formerly in the Army and both of those individuals independently contacted law enforcement. The person that he knew that used to be in the Army contacted the FBI and the other individual contacted CID by sending an e?mail to us, to our office account. It was not an anonymous tip because he left his name. I am not aware of any benefit that Mr. Lamo received.At the beginning of the case, in the investigation, when CCIU first received it from Camp Liberty it was only the 74 Army CID and the Department of State that were looking into the matter. And at some point, I would have to go back and look at the investigative case file, the FBI became involved as a joint investigation. The State Department was involved nearly immediately because of the nature of the information that was contained in the chats seemed to be fairly obvious that involved classified data which belonged to the State Department, so they were brought in very early, I think maybe a month into the investigatiOn, when CCIU had begun the case is when the FBI became involved. It may have been a little bit shorter, I have to go back and look at the case file. I know that we had spoken with advisers from the Department of Justice early on in the investigation and I know that one of the Us Attorney Offices was involved in doing some investigative activity. I believe the US Attorney Office that was involved was the Eastern District of Virginia. Their advisers along with us had ongoing discussions. Their practices ranged from kind of knowing their best practices and kind of how to investigate this type of case with classified information. The US Attorney Office was advising the U.S. Army CID. I would say that they were considered the experts in this type of investigation. EXAMINATION BY THE INVESTIGATING OFFICER When PFC Manning was confined in Kuwait there was an attempt to get a search authorization for his material there but that didn?t occur. Essentially, we identified that there was this container, these items, his personal effects, and we had contacted the Kuwait confinement facility and asked them about being able to search through those items, to obtain those items and have them sent directly to us, but probably more likely we would have had an agent from one of the CID offices in Kuwait go there and collect items directly. It's my understanding that they said that we would need to have some type of search authority to do that. So to follow that we contacted a military magistrate in Kuwait and described the circumstances and attempted to get a magistrate search authorization from them, and what occurred from that was some type of a legal disagreement in regards to the magistrate felt that we did not need a search authorization to search those items because PFC Manning was in custody and they believe that we would have the ability to search those items due to his status as being confined. That led to going back to the confinement facility and them saying that it was true but only in regards to issues of safety and security. For example, in prison his property could be searched for weapons or contraband things of that nature that relate to violations of his confinement status, but 75 when it comes to an investigative matter, things that are outside of things related to safety and security, then you would need to have a search authorization and about the time that we figured that out essentially PFC Manning had been transferred and the possessions were no longer there. REDIRECT EXHMIHAIION Questions by Assistant Trial Counsel 2: Forensic examinations of the digital media that is collected is generally kind of a slow process of looking through items, especially if there is a lot of data to look through. As items of investigative importance were identified on digital media they would provide this information to the investigative team which would then take that information depending upon what it was contact the appropriate person--coworker of PFC Manning, friend, relative, and then asked them if they knew about that bit of information. I cannot think of any specific examples at the moment, but that was how our process worked during the initial stage of the investigation. We were trying to identify all of the evidence or testimony related to this investigation that would show what occurred. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] The defense stated that based upon the testimony of the witness who just testified, they requested that the Investigating Officer compel the production of collateral investigation evidence from the government. The trial counsel responded by stating RCM 701 does not apply until referral of this case, and that the government does not have approval from the Department of Justice or the FBI to turn over such files if they exist, but the Department of State case file has been turned over to the defense. The Investigating Officer did not take the defense request stating that the collateral investigation evidence was not necessary for the Investigating Officer to conduct a thorough and impartial investigation. [The Article 32 investigation recessed at 1443, 17 December 2011.] 75 [The Article 32 investigation was called to order at 1459, 17 December 2011.] Investigating Officer called the hearing to order, and stated that all parties that were present prior to recess were again present. SPECIAL AGENT TROY BETTENCOURT, United States Treasury Department, was called as a witness by the government, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1: I began working for the Treasury Department just this month. I am assigned to the computer forensics team providing computer forensics support in support of criminal investigations into civil and criminal infractions. Before I started working for the Treasury Department I used to work for the Army's CID, Computer Crimes Investigative Unit, I actually have two tours there. One of my tours was from November of last year until December of this year and then the other tour was from 2001 until 2005. On my last tour I was a special agent assigned to the intrusion team and was primarily assigned to this particular investigation. I do have a background in computers. I have received training from both government and commercial providers specifically. I have earned my computer evidence recovery specialist certification from FLETC at the federal law enforcement training center in Georgia, I earned my network security certified professional certification from learning center international, my EnCase certified examiner certification from guidance software, my access data certified examiner certification from access data, as well as a digital media collector certification from the 0C3, the defense cyber crime center. I have testified before in a computer crimes case in front of a federal grand jury for an international computer hacking investigation and than multiple times in support of general crimes, drugs, and sex crimes investigations. WikiLeaks was founded in 2006 by Julian Assange, he is an Australian national. They describe themselves and Mr. Assange describes them as an intelligence agency of the people. Basically, they aren't bound to any government Or corporate entity, sort of like an open source intelligence repository. About the same time that the organization was established and the website was established, the website solicited submissions 77 of information that would be of interest to them specifically at the time - for classified, censored, or otherwise restricted information. can go to the WikiLeaks website, they have a link that you can click on to submit. Once you went to the submission page you will see a button that would allow you to browse your computer looking for the documents you wish to submit. It?s sort of like attaching a document to a web-based e?mail. Once you clicked on that you identify the documents on your computer then hit submit and the website would transmit those documents to WikiLeaks via communication WikiLeaks is basically a website, the technical side of it is. They reported their servers being all over the world. They have identified locations in Sweden, Iceland, England, Germany, Texas, so they have multiple servers, sort of like disaster planning. Make sure that if one server goes down they have others to back them up; in fact they used the Amazon servers for a period of time. Essentially the physical base of operations is wherever Mr. Assange is located. So currently, England where he is awaiting possible extradition. He did for a period of time use Iceland as a base of operations. Since early 2010, WikiLeaks has been a big proponent of the initiative in Icelandic called the Icelandic modern media initiative. Iceland's Parliament would reform certain laws within Iceland to make it more favorable to journalists. They've described it as sort of making Iceland akin to journalism what Switzerland is to banking. WikiLeaks did solicit information that they were looking for, they published an updated list, which they would frequently update on their website, broken down by country of what information they wanted. They called that their, ?Most wanted list." The image on the screen looks like the most wanted leaks it said 2009, so by the archivss it looks like 30 August 2009. Websites change over time, there is an Internet archive one of them is called, "Way back machine," and what they do is that they periodically create snapshots of certain websites on the web and at any time you can go back and query the archives to see what was posted on a particular day that they archived. That image is another one from 2009, based on the URL, the archived date for it was May 22, 2010. That is as it appeared on the web on 22 May 2010. That image is the list and the date is 5 November 2009, and that is as it appears the date that the snapshot was taken by the Internet archive. The list is broken down by particular countries that they are interested in and under the country grouping and under the country name they will have specific documents pertaining to that country. And they have a United States section as well. Intellipedia is Pager 78 macaw-n.me essentially the classified intelligence community's version of Wikipedia, if you're familiar with it. A place to sort of get information, it is sort of a fairly good resource updated by intelligence professionals. Also, Opensource.gov, which is the CIA open source center. As you can see there is basically an unclassified database where the CIA gathers open source information from arOund the world and publishes it in that location. Further down, You will see a federal politics section and then under military intelligence you will see a few things that pertain to this investigationfocused primarily on the military and intelligence community you will see that stuff pertaining to CIA, detainee interrogation videos. Further down there are some rules of engagement pertaining to Iraq and Afghanistan. You will see references to Camp Delta for their standard operating procedures as well as their interrogation standing operating procedures. That?s referring to the operation at Guantanamo Bay. If you scroll down a little further I think is the last entry, again it asked for the Afghanistan/Iraq rules of engagement in there. The first one I believe is just for Iraq, the second one has both of them together. The Investigating Officer instructed the trial counsel to slow down due to the nature of the material and the amount of material that was being covered at that time. The direct examination by Assistant Trial Counsel 1 continues as follows: Right below the sixth and seventh bullet down is the Iraq ROE. Then if you go down five more, once again you will see mention of Camp Delta, Guantanamo Bay, the SOP for interrogations, and regular 8093. Then, two below that you will see Iraq and Afghanistan rules of engagement. And those are the ones that are specifically pertinent to this investigation. WikiLeaks has used social media and they still do, they are fairly active on twitter. Twitter is sort of a very real?time way of providing very short concise updates to people that wish to follow your organization or you as an individual. What we are looking at right now is a WikiLeaks tweet, as you can see in the lower left from January 2010, in this case they are saying that they had videos of a US bomb strike, and if you click on that link it will take you to a wired.com story about an incident that occurred; it is commonly known as the Gharani incident. The bottom line there, actually it is an expired domain that no longer is active, but at one point I checked the Internet archive and it was a WikiLeaks website. Now the image 79 mr-JmU'I-waH that we're looking at now is a twitter feed, you can see at the top left it mentions WikiLeaks, it has their logo, or one of the logos that they were using and it says that they are looking for a database called, "Treasure Map," regarding IP, meaning Internet protocol addresses that they want access to and it appears that they are soliciting someone to provide it to them. That feed was provided 16 February 2010. That image is an additional tweet from WikiLeaks which is dated May 7, 2010, and they are asking for a list of as many .mil e?mail addresses as possible, so meaning e-mail addresses relating to military domains. I am familiar with the charges and specifications. 18 February 2010, they released a Department of State cable entitled, "Reykjavik 13," it was a Department of State cable that documented what is commonly referred to as the, "Ice Save Incident," it was a failing Icelandic bank that caused some problems between Britain and the Netherlands and Iceland. On 15 March 2010, they released an Army Counterintelligence Center report pertaining to WikiLeaks. On 5 April 2010, they released an edited version of an Apache weapons team video of an incident that occurred in Iraq along with the Iraq rules of engagement. They both were released on the same day. WikiLeaks termed it, "collateral murder," that is sort of the commOn term for it. On 25 July 2010, they released what they have called, "the Afghan war diary." It is approximately 76,000 out of 90,000 incidents that were in the CIDNEIAfghanistan database. On 22 October 2010, they released the corresponding, "Iraq war diary." It is about 400,000 incidents that came from the database. The reports ranged from 1 January 2004 until 31 December 2009. On 28 November 2010, just after Thanksgiving they started to release the Department of State cables, they commonly referred to it as, "Cable gate," and that release continued for quite some time. Between 24 April and 21 June 2011, they released detainee assessment briefs, documents pertaining to detainees at Guantanamo Bay, Cuba. In total they released 765 detainee assessment briefs out of 779 they claim to have in their possession. They were released in small batches, large batches, it just sort of trickles out. On 20 August 2011, they released the entire amount of documents in their possession, 251,287 Department of State cables and they were in unredacted form. They made that available on the Internet. 80 k' CROSS-EXAMINATION Questions by the civilian defense counsel: During our work on this case we did work with other law enforcement agencies. We worked with the FBI, we worked with the Department of State, and we worked with ICE. I interviewed many individuals as part of my investigative work; I would say more than ten. We interviewed individuals pertaining to this case that were part of PFC Manning's chain of command, or served with him, or contractors, basically people that knew him. I interviewed all but one with other agents. I believe there were only CID agents present during the interviews that I conducted, I don't recall anyone else being present. I did take notes during interviews. None of the interviews were audiotaped or videotaped. What determined whether an interview was going to be audiotaped or videotaped was partially facilities, if it was available, we do have to get approval from our supervisor. In this case there were no audio or video statements taken. During my work on this case I did come across evidence showing that PFC Manning did desire to create an alter ego of Breanna Manning. He had an e?mail address; I believe he may have had two, but at least one that I know of. He had a Facebook profile also name Breanne; there is an e-mail that he sent to his chain of command showing him dressed as a woman. So yes, we were aware of that. During my work on this case I was aware that PFC Manning was gay. I have served in the military, I served for 12 years. During my investigation on this case I did not find any evidence that showed PFC Manning had ties to a terrorist group. There was evidence that indicated PFC Manning could be interested in politics. There were several individuals, I would have to look at my reports to see which ones, very often people in the SCIF said that downrange they would have discussions pertaining to politics, just sort of passing the time and he would be active in those discussions. There were times during the investigation where I saw evidence that suggested PFC Manning exhibited odd behavior. There was an incident where he assaulted his supervisor and reCeived punishment for that. And there was another incident when he threw his computer monitor off the table in sort of a fit of rage, and then there was an incident where a member of the unit found him curled up in a ball while downrange. I would say that I have an opinion but my opinion is definitely colored with the benefit of hindsight. I would like to think that had I been in the chain of command I would have done things differently. Ideally, I would have been aware of 31 everything we now know as far as his behavior to prevent him from deploying. Again, that is with the benefit of hindsight. REDIRECT EXAMINAEION Questions by Assistant Trial Counsel 1: I was a CID Agent, I had to sign a nondisclosure agreement. I do have a government security clearance. I do believe individuals have a personal responsibility to safeguard classified information. OBJECTION The defense counsel objected to the line of questioning stating relevance as to what this agent might believe at this point regarding responsibility, guilt, or anything regarding my client. The Investigating Officer sustained the objection stating that the trial counsel can ask the witness if he believes that individuals have an obligation to secure classified material, questions as to guilt or innocence are not for the witness. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] BRIAN MBDRID, Civilian, was called as a witness for the government, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I retired in the middle of September 2010; I served in the Army for 22 years. I was a 35T, which is a Electronic Warfare Military Intelligence System Integrator and Maintainer. I worked on all of the MI collection systems, computers networks, communications equipment, and we were also evolving into the exploitation of captured enemy equipment such as FDA, laptops, and phones. I was PFC Manning?s AIT Platoon Sergeant; he attended advanced individual training at Fort Huachuca. He attended training there, I believe, from April until August 2008. I was in the Platoon Sergeant position from between February 2008 until August 2010; that's about 2 1/2 years. 82 mumm-e-Lumr?l PFC Manning is a 35F, a Military Intelligence Analyst. I am familiar with the 35F block of instruction. The first block of instructions that they received I believe it is called, and it is basically instructing the military analyst how to handle and the safeguarding of classified information. I know that is the first block of instruction because I would talk to the instructors, and students would always come back and say how much they enjoyed the class. In order to attend that AIT they have to have an interim security clearance. The accused was required to do corrective training in AIT. I believe that was in June 2008. Some Soldiers had come to me one afternoon explaining that Private Manning had been posting videos on YouTube, and he was using words such as top secret, secret, classified, and SCIF which he was taught not to do. Allegedly, there were three videos; because of the limitations with our local network, we had YouTube blocked, so we had one of the Soldier's laptop and used the wireless Internet to see one of the videos. The video was of him inside of his barracks room speaking about his daily life: then he began to branch off onto subjects like well I work at this secret SCIF, I handled this classified information, using buzzwords like that. The corrective training at the time that he was required to do a presentation to the company, and whenever we had the Soldiers do that type of corrective training, he would have presented it to us first to ensure that the Soldiers were going to present an informative product. I also had him present me with a type memorandum stating that he basically understood that he wasn't supposed to do that type of thing. He wasn't supposed to expose himself, a person with clearance with access to that type of information. The presentation in front of the unit was about information security, how to handle it, and especially if you are a person with access to this type of material you are not to expose the material or that you have access to it. And that it can be dangerous to personnel that are in the military and that there are people, enemy forces that are trying to collect information on the US military. The substance of the type product was basically what secret information is, the type of people that are trying to collect against the government such as, foreign governments, enemies, Spies, hackers, items like that. The PowerPoint was very similar to the written product but it had more reference to regulations. He did three total types of corrective training-the presentation in front of the platoon, the PowerPoint, and the memorandum. CROSS-EXAMINATION Questions by the civilian defense counsel: 83 mqunpb-mMI?I The AIT course Intel analyst is 16 weeks and 3 days. And part of the AIT instruction is done in the classroom, and part of that instruction is done in the field. Me being a platoon Sergeant I had anywhere from 140 to 150 Soldiers. I do get to know an occasional Soldier depending upon the situation, there are some Soldiers that you have to dedicate a lot of your time to, and then there are some Soldiers that are really low maintenance. I generally get to know most of them. It would be a fair assessment to say that I do not get to know them all very well. The training that they received consisted of a lot of training, there is a lot of training compacted. I don't think that is unreasonable to say that it is firehose mentality. This is the initial course for someone being trained as a military intelligence analyst. At the end the AIT students conduct a ten-day field exercise. Once they complete that then they graduate and go on to their first duty assignment. Once they graduate they have a basic understanding they are by no means an expert in that field. The expertise for the Intel analyst comes as they learn on?the-job training through time. After I watched that video I showed to Captain Ogletree, the video did not discuss any specific operational security, but he was using the buzzwords top secret, classified, words of that nature. This video was intended for friends and family, that was the target audience. I do not recall him saying anything about him missing his family but I do recall him talking about barracks life in the video. Those buzzwords in and of themselves are not classified, they are pretty well known. Just referencing those words in the video is not a security breach because it referenced those words and he was an AIT student he had to do some sort of corrective training. I personally do not have any ability to suspend his clearance, even though he was counseled for this incident he did not lose his security clearance over it, had it been suspended he would not have been able to complete his training. REDIRECT EXAMINATION Questions by Assistant Trial Counsel 2: Those Soldiers are taught not to use those buzzwords because if they were to identify themselves to outside personnel they give themselves an element of possible compromise. Somebody on the outside could find out that they had a security clearance, they could target the individual because they have access to a certain level of infermation. 34 OBJECTION The defense counsel objected and asked the Investigating Officer to voir dire the witness. The Investigating Officer granted the defense counsel's request. VOIR DIRE I was an AIT platoon Sergeant who I had nothing to do with the 35F trainer. was in charge of those students. setting up of classes, but I sat through a class. any of the instruction for those students. The defense counsel objected stating that this witness was not an eXpert in the training of the HIT students. The Investigating Officer instructed the trial counsel to lay a proper foundation before asking those types of questions. The redirect examination by.?ssistant Trial Counsel 2 continued as follows: I did not sit through all of the classes that the students attended but I sat through about 3 or 4 classes for each block, and the length of each block varied. I did sit through the first portion of instruction which discusses classified information. And in that first block of instruction they stated that you can't transmit classified permission to someone who is not authorized to have it. [The witness was permanently excused, duly warned, and ended the call.] CAPTAIN STEVEN LIM, Division East, Fort Hoade, Maryland, was called as a witness by the government, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the trial counsel: I am the deputy 62 for 1st Army Division East, here on Fort Meade. I plan, resource and train Reserve and National Guard Soldiers on intelligence training before they deploy. My branch is military intelligence. It is our job to present comprehensive 85 OOH-Jmmeer?I intelligence products to our commanders so we can make decisions on whatever he needs to decide on. From my job, we take different forms of intelligence and create a product consisting of multiple forms of intelligence to meet the commands needs and to help him make a decision on whether it be to move on a certain mission or to move forces to a certain place or not. The product we give him will help to make that decision. I had been an intelligence officer for five years. I have been in the Army for 9 1/2 years. Prior to this I was an air defense officer. I attended the military intelligence officer transition course and the military intelligence officer course. The transition course was designed to give those officers who were not military intelligence to a good introduction of MI and how works the basic forms of it. The Captains career course also known as the advanced course gave us graduate?level classes on intelligence preparation of the battlefield and to perform other duties as future Battalion 82 or intelligence officers, it also gave us a little background on Company Commander. I was an infantry Battalion 52 officer for 2?14 Infantry, 2nd Brigade, 10th Mountain. And I was the 2nd Brigade Combat Team 82, 10th Mountain Division. I was also double hatted as the assistant Brigade 82 and the MI Company Commander 2nd Brigade, 10th Mountain Division. I have been deployed three times, two times as an intelligence officer. All of my deployments had been to Iraq. The last two deployments were with 2/10 Mountain. I arrived to 2nd Brigade in March 2006. A Battalion 82small staff of intelligence analyst to provide him a combat ready intelligence so that we could conduct combat related operations. It is also accurate to say that the S2 is the Intel officer for the organization. I was in 2nd Brigade, 10th Mountain Division as a Company Commander. My first duty was taking care of Soldiers within my company and their welfare, for tactical employment it was my job to manage the MI company?s collection assets, because once we deployed we were directly underneath Brigade, and my assets were at the Brigade's disposal for collection. I met Private First Class Manning at Fort Polk, in July 2009. I was confused about the rotation because we did two rotations about six months apart. Originally in 2008, we were scheduled to go to Afghanistan and then after we attended our first JRTC rotation our orders changed to Iraq and we had to go back to JRTC to recertify as a unit. JRTC stands for the Joint Readiness Training Center, at Fort Polk, it is where major units go to validate their mission rehearsal exercise prior to deployment and to become certified to deploy. When I met PFC Manning at the second rotation we were practicing to go to Iraq, because we were on our way to Iraq shortly after. 36 mummwaI?t During the rotation I was the MI Company Commander but I was also pulled into the Brigade 52 shop, to serve as the assistant Brigade 52 at the same time. PFC Manning was an Intel analyst within the Brigade 82 shop. He handle all sorts of intelligence, his MOS is 35F. Some of the prerequisites for a Soldier to become a 35F is to have to graduate basic training, and then successfully pass AIT, and with that comes a top secret security clearance as well._ Generally speaking you have to have good credit, good background information, as far as no past felonies, a character in good standing. You have to be an American citizen as well. Usually to become a 35F for any intelligence MOS you have to have a higher GT score than other specialties. Generally, they are smarter than most Soldiers. 35F should receive basic intelligence preparation of the battlefield MI systems, collection assets capabilities, resources, and some basic security training as well. Collection systems are different forms of defense systems whether it is aerial forms or ground-based systems that the military uses to conduct intelligence analysis. The system that all-source intelligence analyst use is the Distributed Common Ground System Army, it is simply a laptop terminal hooked up to a server where intelligence analyst has all the resources to conduct a good analysis at his disposal using multiple databases standard Microsoft office suite and other geo?plotting software as well. This system is found on the SIPRNET network, which stands for basically a secret network. They should receive some security training, basic classification principles, how to properly mark and understand classification data. When you're doing research on your pulling information from different places you're making sure the information that you hold is labeled correctly from what you pulled it from. Labels are classified properly, if you pull something from a secret document, you have to make sure the document is labeled secret. They do show up trained in recognizing those documents from AIT. I?m not 100% on sharing of information. In order for an Intel analyst to share classified information with someone else they have to ensure that that person has the proper access or clearance to read said material. That is something that a 35F in general should know, due to the fact that we deal with more classified material than most other MOSs. The 35F is the enlisted equivalent to my branch. There is a multitude of systems that Intel use, we fly UAVs also we also have other groundsbased assets that talk to airplanes and pull data that way. There are multiple 87 databases that we datamine through to pull information to do specific work. Datamining, is a simple process of conducting research through multiple avenues taken a database and plugging in certain words trying to narrow down exactly what you are looking for through a big amount of data. When you're making a product for your Commander you need to tailor it to exactly what he is looking for, sometimes that requires searching for one specific person place or thing. of the resources that I found on the SIPRNET that we used to datamine are CIDNE database, query tree, Intelink, and other smaller databases that are out there also. It is the combined information data network exchange, it contains reports of all kinds, everything from human intelligence reports patrol debriefs, civil affair debriefs, State Department Provincial Reconstruction teams debriefs, and a whole lot more. The CIDNE database is not just used by Intel analyst. It is used by almost everyone nowadays there is even medical personnel that are filing IED traumatic brain injury reports in there as well. 35F use CIDNE to datamine. Intelink is a secret version of what we call Google. You click on a search box type in a word you enter and then you get a swath of links that match the word that you search for. And on the SIPRNET the information would be secret information. 35F use CIDNE and Intelink, in a combat environment every day, to include the multiple deployments to Iraq. There is a distinction between combat environment and a garrison environment because the duties differ pretty drastically. In a garrison environment intelligence Soldiers are more likely doing administrative based jobs, physical security, personnel security, assisting with the processing of security clearances for other Soldiers, assisting on inspections of subordinate units and not as much analysis and a garrison environment. So a 35F in garrison is typically at the Brigade and Battalion level assisting other Soldiers and getting their clearance. They should be doing a for specific data to make sure that it all lines up, passes the test and then working with the higher headquarters who processes the security clearance to get updates status reports, has it made it through, Some and he rejects, any errors, what do we need to fix. The stands for quality assurance quality control. A good S2 shop would always have Soldiers staying current on events, the majority of units will start really focusing on the enemy as they are ramping up towards deployment 4 or 5 months out, it depends. I do not remember a whole lot about PFC Manning. We were very undermanned during that rotation, I was working long hours, so I don't remember a whole lot about him. A multitude of individuals rely on the work product of 35F. I know that the 88 Commanders rely on the products that Intel analyst give them because as a Battalion and Brigade 52 it was my job to make sure that he had those products in his hand that he request. If we are conducting an operation somewhere what we would do would be provide only the historic information for that area historic enemy activity attacks sniper, ID and stuff like that combined with other reporting of that area. We are going to put it all on a product, I will probably assign it to a team leader, a team leader would then assign it to one of his Soldiers to do and then we will go through and make sure along the way more progress charts, make sure the product is in line with the Commander's intent and then once it was complete more often than not I would take it and conduct any final analysis and follow?up with the team leader on the analyst who worked on the product and make sure it was the we need to be and then presented to the Commander in some form of briefing. After that JRTC rotation the next time that I worked with Private Manning was once we deployed to Iraq at the end of 2009. I became the Brigade 82 in January 2010. The original Brigade S2 was relieved and sent to a transition team to work with Iragi's. He was moved to that position because he couldn't properly explain information the way the Commander needed it, so they put me in the position instead. We were primarily enemy focused supporting our troops on the ground at the same time you were partnering with Iraqi Army and Iraqi police exchanging information helping them build their training in intelligence. PFC Manning was on the Shia threat team, because we had both Sunni and Shia threats in our area. That type of work entailed focusing mainly on specific areas where we had Shia threat based out of conducting analysis of certain type of attack patterns and also analyzing other forms of reporting. This office was located on FOB Hammer but my actual office was located in the command group. PFC Manning and the rest of the S2 shop was located in what we call the SCIF, it stands for sensitive compartmented information facility. Only the signal intelligence Soldiers had direct access to top secret information. In an unclassified environment they specifically worked on signals intelligence products they received specific training above and beyond what in all?source intelligence would do. All source intelligence could have access to top secret information but not direct access. I could not get on the computer that was on a top secret network. There was a network that was present that had top secret access. There were multiple networks that had that type of access. 89 We had SIPRNET and NIPRNET, which is a secret classification network and an unclassified network. SIPRNET was the network that the all source intelligence analyst used every day. The computers that we have were on an internal network, I know this because we will all network to a classified hard drive. Individuals in the Brigade 32 were authorized to remove classified information fIOm the computers we had to take information that was releasable to Iraq, specifically classified for that. We had to take the information to give to translators, to translate products in Arabic so that we could release the information to Iraqi Soldiers. It was a specific caveat with our mission there we partner with the Iraqi's there was information that could of been specifically releasable to Iraq which means that we were authorized to release the information to Iraqi military. That happened all the time almost every day. Because that was part of our mission was to train and share information with the Iraqis. The Shia posed typical threats gunshots, sniper attacks, and direct fire and the most lethal was IED attacks. It was common to our Brigade at the time. When we first started out it was more than when we left but approximately I to 5 attacks a day. They were able to pull the significant activity of historic events from the CIDNE database and conduct analysis of any type that was necessary. PFC Manning had to do this type of research. He also had to research the effect of An individual cannot create that work product without understanding what they are looking at. Because as intelligence analyst we make a product based off of what the Commander needs we are not going to create a product of something that we don't understand, and that is true for even the junior Soldiers. Private Manning's was he was very good at statistical analysis putting numbers together creating graphs showing historical events over time which would in turn help us to do pattern analysis. He was very good at putting their data on to a system we call Arc map, which is just a simple digital map to give a visual picture of what his analysis portrayed. The statistical analysis part is a little bit easy, but actually being able to manipulate the system the way he did was not easy to me it was a very challenging system to use. It could be referred to as data mining. It was difficult to use because it was a very technical system, we didn?t use it a lot it was kind of a perishable skill and it wasn't just simple as clicking and shopping and dragging it took some technique to use, it took a lot of practice. 90 mummthI?I PFC Manning weakness was public speaking or briefing trying to get a point of course specifically. PFC Manning used CIDNE, query tree, the biometrics database and a whole bunch of other networks. I don't think there was a need for him to use Net Centric Diplomacy. I don't know what that is. In my office classified information is protected by first and foremost we had a cipher lock on the outside within access roster so those who do need to have access didn?t have the code to get in. The second was the top secret being in the back and only those certain Soldiers had to login to get on system. Nothing preventing a Soldier from burning a CD for their own purpose, because we can watch every single person twenty?four hours a day, we were just too busy to do that. And I believe that there comes a level of trust with a top secret clearance when you are awarded one, and we all signed a nondisclosure agreement stating that we would not do that. From my knowledge Specialist Padgett was the nighttime supervisor and I believe he was counseling PFC Manning on arriving late and PFC Manning flip the table and it stopped at that. The outcome of that was we gave PFC Manning some down time so you can cool off and then someone took him to behavioral health. We did not remove them from the SCIF at that timer 1 was not in charge so it was not my call. I can only guess that it wasn't drastic enough to fully remove him we also needed the to help us continue the work. When I came back from environmental leave PFC Manning was no longer working in the SCIF he was working in the supply section for our headquarters. His security clearance was flagged with derogatory information. so it was recorded within his files and his security clearance, and he was also charged with UCMJ. This all stemmed from his assault on Specialist Showman. We moved him out of office because we felt that it was not good for him to be around the other Soldiers in it was not safe for the other Soldiers. I have had other Soldiers that have minor disciplinary problems but I didn't remove them from the office, depending on the case, most people are able to be rehabilitated. OBJECTION The defense counsel objected to the line of questioning stating relevance. The trial counsel stated that it is an element of sixteen specifications. 91 The defense counsel renewed his objection stating that the witness should not he asked the question to make the ultimate conclusion on that. The Investigating Officer overruled the defense counsel's objection. The direct examination by the trial counsel was continued as follows: Yes I do believe what PFC Manning has done has brought discredit upon the armed forces. CROSS-EXAMINATION I entered the Army in 2002. I was assigned to 2nd Brigade since 2006. My duty position at that time was to be Battalion 82. I have been in my current branch since 2005 the end of 2005, which is an all source intelligence officer. I switched over from air defense artillery. MI Commander is multiple platoons, it is Brigades collection assets, there is a human intelligence platoon, there is a UAV platoon, a signal intelligence platoon, and other comes packaged, and a simple headquarters. The original guidance for selecting personnel who were not deployed with the Brigade was we would take all able bodies pending medical issues that prevented them from deploying. The order was given for us to take as many people downrange as we can. In order for me to take someone off the list off the deployment I would have to submit it up to the chain of command. The Brigade Commander was the approval authority to leave someone behind. Once we deployed I was the MI Commander and the assistant Brigade 52, in October 2009. As the assistant Brigade 82 it was my job to attend meetings that the 32 was not able to attend and to brief the 82 on all the information that he needed. Once we deployed I have very little interaction with BBC, 2nd Brigade, my NCOIC dealt with them. Yes two shops to go will for the unit that was leaving when we deployed in October, and I also worked as the assistant Brigade 82 from October 2009 until January 2010, then I became the Brigade 82, and so for about a month I had three jobs. So in the beginning of February 2010, I was freed up to just do the job of Brigade 32. I was assigned at the Brigade because at the time I was the assistant Brigade 32 92 so I was the next in line, and I believe that my command felt that I was qualified to do the job. The major that had a job before me was removed which is not common in a deployed environment. My office was not in the SCIF, I worked within the command group, the SCIF was a very far from where I worked at. I had about ten working for me in the S2 shop. From the beginning of the employment the person in charge of the night shift were Specialists, and towards the end of the deployment the NCOIC in charge of the night shift was a Sergeant First Class. It was a NCO on the night shift because we didn't have any more NCOs to be in charge of the night shift. When we first started our deployment PFC Manning worked the night shift with no NCO supervision. I worked with PFC Manning during the deployment. This was not his first duty assignment he had been assigned to Fort Drum he had been in the Army for a few years. Other than a standard training that they do it the Brigade I am not sure what the training PFC Manning had. Once we arrived in Iraq we got some additional training on classification and then a few of us got even more training after that. The class was not designed for the Soldiers it was designed for the senior leadership. I will work with PFC Manning occasionally, to give him more guidance. The goal of the night shift was to do the task that the dayshift could not complete, and to do more research. We had two teams on the night shift the Sunni team and the Shia team. During the deployment PFC Manning was promoted specialist, due to it being his time to get promoted, basically it was automatic due to the amount of time he served in Army. PFC Manning was very good at using the computer programs for his job but he was not good at giving briefings. If PFC Manning didn't know what to do he would stop working and sometimes it would take him all along time to complete this task, but that is a common occurrence with junior analyst. PFC Manning was not one of my better he was moved to the dayshift so he can get more guidance. Then he was eventually moved back to the night shift but I do not know the reason why. Major Clausen was moved out of the 52 position, from what I was told, because he could not convey the information to the Brigade Commander. Major Clausen was not a hands?on leader he went into the SCIF a couple of times a day, but he let Master Sergeant Adkins run the SCIF. When I took over he did not briefed me on any administrative issues. At the time that I 93 took over I was not aware of any emotional issues with PFC Manning other than what I had observed from working around him. I was not present when PFC Manning had that emotional outbursts, but I heard about it. Both of these emotional outbursts occur before I became the Brigade 52. During the incident with SPC Padgett I was told of a lot of things that happened but not everything that happened, like the computer being broken due to PFC Manning flipping the table over. I was not told that PFC Manning had to be restrained due to the fact that others believe he was heading towards the weapons rack during the incident. Had I been told about this incident I would not have considered it a minor incident. I would consider that an incident that should have resulted in derogatory information in his file, and if the proper authority being so it could have resulted in the termination of clearance. After the incident I believe PFC Manning received a negative counseling and was taken to behavioral health. I do not know if the personnel involved reported this incident up higher. I do recall saying that I gave my input to the chain of command, but other actions were taken. Had I been the Commander at that time I probably would have done derogatory information in his file if the appropriate personnel wrote statements, when I gave this information to the chain of command they did not follow it. I did not hear about the incident where Master Sergeant Adkins was counseling PFC Manning and he became emotional and shove the chair. I do know that Master Sergeant Adkins wrote several memorandums regarding the emotional problems of PFC Manning. I've seen those memorandums after PFC Manning was detained. I do not know why it was Master Sergeant Adkins who was handling all the issues with PFC Manning. He had a sensing session and Soldiers talk about grievances in the shop, mostly complaints about the need to enforce the NCO support chain. There were complaints about Master Sergeant Adkins stripping everybody in leadership positions of their leadership roles. I received a letter of admonishment and in that letter it indicated that I should have been aware that Master Sergeant Adkins usurped the responsibilities of first?line and midline supervisors when dealing with day care and discipline of enlisted Soldiers. When I read those letters I was shocked, I was shocked that he did not share those memorandums with the chain of command before. I counseled Master Sergeant Adkins as soon as I read those memorandums, because he forwarded me an e? mail from PFC Manning that was sent to him months earlier. 94 mummwaH In the e-mail PFC Manning stated that he was suffering from issues with his gender identity and how it affected him in his duty performance and impacting his ability to actually think, also attached to the e-mail was a picture of PFC Manning dress as a girl. Master Sergeant Adkins did not send that e-mail to me until after the arrest of PFC Manning. Based upon the e?mail I knew immediately that PFC Manning had issues with his gender identity, that the chain of command should have known, and that he should have been removed from the SCIF. Had it been informed of the e-mail and everything that happened after the e-mail was sent PFC Manning definitely would not have been in the SCIF and as the Brigade security manager, Master Sergeant Adkins had a duty to report derogatory information of anyone. The memorandums that Master Sergeant Adkins shared with me predated the deployment, and the privilege of having a top secret security clearance is basically an ongoing thing. The SS could have turned off PFC Manning access to computers almost immediately if they were instructed to. Somebody told me that there was a standard operating procedure for the SCIF, but I'd never seen, if there wasn't one that will be a problem. In order to get a SCIF accredited you have to have an SOP and ours was accredited. There wasn't any training on key SCIF rules and regulations. The SSR, the special security representative, they are responsible for the day?to?day management within the security of the T-SCIF. I'm not sure this Master Sergeant Adkins went to any training for the SSR position. The formal training for the SSR position was only about a hundred slides, it can be done within an hour. CDs and DVDs that are secret and top secret are supposed to be specifically labeled so they can be easily identified. CD's lying all around the TSCIF, although I have not seen it, sounds about right. The CD5 were used for a multitude of things all classified and even though they were not labeled they should have been. Soldiers were only allowed to bring in closed loop music CDs into the SCIF, but I am not sure how that was enforced. So you were allowed to leave the SCIF with writable CDs but it had to be for official purposes only. So we could burn things onto a writable CD but there was a SOP in place instructed them of what they could burn and had to be for official purposes only, and we would review it before they were burned so they didn't have to burn multiple CDs so we can save on supplies, and that happened more often than not. 95 I not all of them. Soldiers were able to listen to music in the SCIFclosed loop CDs, or already on the SIPRNET, but that really was and by the rules and it should not have happened. I have also seen Soldiers watching movies in SCIF. Some movies were stored on the SIPRNET. I have seen games stored on the SIPRNET but I have not seen any of my Soldiers playing games in the SCIF due to the fact that we never had time for that sort of stuff. I never heard a Soldier say that they had to add a program to the system for operational purposes. I did not make classification determination as a part of my job, I did make classification decisions. Whoever originated the report or all when we have a particular piece of information is classified the person who generated the report made their classification determination. We would use his intelligence reports for the release to Iraq information. We labeled it, REL- Irag. We would extract the data and put it on products. We then would put the information below the tear line. The tear line is a quick reference on the document so you know everything below that line is a certain classification and everything above the line is a different classification. The S2 shop worked off the classification guide, and I had not seen anything that was unclassified that was marked classified, but we have had discussions about that sort of thing. We either used the CENTCOM classification guide or the MNCI classification guide, everyone had access to it. Mostly only the foreign disclosure officers used those guides, they were available to everybody. The following disclosure class lasted about an hour and contained about maybe one hundred slides. Over a period of time a document could be deemed unclassified. We put declassification dates on some items but There really wasn't a time limit for how long something needed to be classified. The research and create a product, they do lots of reading. A good analyst has comprehensive writing skills, good briefing skills and the ability to think outside the box, and listed the information from various types of databases. The CIDNE databases are similar to the Google function, you type in the word and you got hits. It was the analyst?s job to filter down and report the important information. The CIDNE database has all types of information. The analyst use significant acts for historic representation. So in other words significant acts are one big historical database. It is possible that something could be written into significant acts that discusses future operations, but less often. The 96 memo-Lbme significant acts are created by usually the forces that are on the ground the unit that it happened to. It would be created for situational purposes, for historical documentation. No personal information is put into significant acts. A HUMINT report, which stands for human intelligence report, is a report of one Soldier's interaction with another person. We don't even put names in HUMINT reports because we put numbers, so we definitely will not do it for a significant acts report. Since significant acts are generally reported as soon as the incident happens they are initially wrong, then we might go back and correct information in the significant acts. I do know that had access to diplomatic cables. I did not know that those cables were for on the Net Centric Diplomacy. I gave the link through e?mail which I had so they could have access to diplomatic cables. I found out about it from higher headquarters. I sent it out to my because I wanted them to see the bigger picture. I did not restrict them as to what they could look at on that link. There was no sort of password that was required to access that link. The diplomatic cables can be accessed by anybody who has a SIPR account, and they are a lot of people that have a SIPR account. Top secret information is not on SIPRNET. I do recall an equal opportunity complaint being filed during the deployment, it was filed somewhere around March 2010. I believe it had to deal with vulgarity, language and excessive cursing. I never found out what that complaint was about and I never found out who made the complaint either. I talked to Master Sergeant Adkins about the letters that he wrote and I asked him why he didn?t share this with the command. He told me that he was trying to handle it himself, and the medical professionals. He should have gave the information to someone who could take care of the situation. Master Sergeant Adkins was reduced to Sergeant First Class by an administrative reduction board. But I don?t know the specifics of what was said in that board. OBJECTION The trial counsel objected to the line questioning stating that the Investigating Officer knew what a senior noncommissioned officer is. The cross-examination by the defense counsel continued as follows: 97 In the SE section Master Sergeant Adkins was the highest enlisted person in that shop. He is an individual who sets the tone for what is and is not to be done in that office. Once I had opportunity to read the letters I knew that is not what he did. REDIRECT EXAMINATION PFC Manning was a smart Soldier. He was someone that I could rely on. I did rely on information that he provided to me during that deployment. He understood the information that he provided to me because that is the specific type of training that he went through and that is something that he did every day. There was no Soldier that was authorized to burn classified information onto a CD in the SCIF and take it to his room. RECROSS-EXAMINATIOH I thought PFC Manning was intelligent. After reading the memorandum by Master Sergeant Adkins I do now know that PFC Manning was suffering from gender identity disorder, but I did not know how it impacted him during the deployment. After reading the letters and seeing his conduct I do see how it impacted him during the deployment. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] 17 December [The Article 32 hearing recessed at 1717, 2011.] [The Article 32 hearing was called to order at 0942, 18 December 2011.] The Investigating Officer called the Article 32 hearing to order, stating that all parties that were present prior to the hearing being recessed were once again present. The Investigating Officer advised the defense and the persons observing that this is a formal investigation and in order to protect the dignity and decorum of these proceedings he asked that all that are present refrain from interrupting or otherwise disturbing the investigation. Should any person nevertheless engage in speech or conduct that interferes with 98 TQH LA) ?arrived at that unit my job was the S2 plans. the dignity and decorum of the proceedings, they may be moved from the court. Additionally, the rules of the hearing provide that cell phones, blackberries, and similar devices are not authorized in the hearing and any person with such device may be removed from this courtroom. CAPTAIN CASEY FULTON, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the trial counsel: I am assigned to 2nd Brigade, 10th Mountain Infantry Division. At the time of the investigation, my name was Captain Casey Martin. I am an officer in charge of a squadron intelligence section. I am responsible for all of the collective fusion of multivintelligence disciplines, intelligence surveillance and reconnaissance collectiOn efforts and the analytical evaluation of intelligence in order to answer Commander?s priority information requirements. That was a description of what an all source intelligence officer does. I have been an intelligence officer for six years this coming January. I went to the officer basic course as a lieutenant, and I had been to the military intelligence captain career course. I was an assistant officer in charge of the Battalion, I was a platoon leader in a military intelligence Company, and I was a Brigade assistant officer in charge as well as the 82 plans officer. I was the Brigade assistant 82. I was deployed with PFC Manning for some of the deployment. I have deployed twice as an intelligence officer, the first one was to Afghanistan and the sec0nd one was to Iraq. I deployed to Afghanistan from 2007 until 2008. I deployed to Iraq from 2009 until 2010. I arrived at 2nd Brigade, 10th Mountain, in the middle of September 2009. We deployed in October 2009. When I first I was responsible for writing the intelligence section of the operation order, the deployment operations order. That basically gave us all a task and instructions that we needed to get into the country. The first time that I met PFC Manning was when I asked the shop for information regarding threat in Iraq and I was directed to PFC Manning because he had a good understanding of the enemy threat. I was directed to PFC Manning because I was told he had better understanding of the threat than anyone else. I used information 99 00771 to an extent to prepare the operations order. Prior to deploymeht PFC Manning was an all source analyst. They do the same thing that all source officers do but without the managerial aspect, the responsibility is to gather intelligence from all the different disciplines. Generally to become an all source intelligence analyst they generally have to have a higher score on the ASVAB, and you have to hold a top secret clearance. To obtain a top secret clearance you have to be able to pass the background information, you have to be a United States citizen. 35F need to have top secret clearances because in order to fuse multi? intelligence disciplines some disciplines operate in the realms of top secret, so they have to be able to pull information from different types of classification levels. 35F for the operational security training is basically training that illustrates how the things that you do on a day?to-day basis may compromise current operations. Information security OBJECTIDN The defense objected to the line of questioning and asked to voir dire the witness. VDIR DIRE I have never been an instructor at the BIT for the 35F. I have assisted in the training of those Soldiers at AIT. The defense counsel objected to this witness testifying to the actual training that 35F received in AIT. The trial counsel requested the opportunity to ask additional foundation questions for her to have an opinion as to what they were taught. The direct examination by the trial counsel continued as follows: It is likely that more than 10 Soldiers arrived to my units straight from AIT. They did not receive any training in between AIT and arrived to the first station. OBJECTION The defense counsel objected to the line of questioning stating that he the trial counsel was leading the witness. um oo?JmmanH The Investigating Officer overruled the objection. The direct examination by the trial counsel continued as follows: My understanding is that the only training that the Soldiers get while in AIT is the only training that they have before they come to the first duty station. Information security training is training on the safeguarding of information, classified or unclassified. Top secret is labeled top secret, confidential as labeled confidential, secret is labeled secret; etc. If we had an unclassified document it will be marked on top and the bottom of the document, it is generally green. The same thing with confidential and secret documents, in a digital environment things are marked the same way as well. OBJECTION The defense counsel objected to the line of questioning, stating that the witness can speak about her experience but not about the training that a Soldier has received. The Investigating Officer overruled the defense's objection stating that the trial counsel laid adequate foundation. The direct examination by the trial counsel continued as follows: I have received and taught information security training. It is taught that when Soldiers comes across a document that is marked as classified that it needs to be safe guarded from unauthorized disclosure. Once a document is marked classified that is what it is. I did not have the authority to make a document originally classified nor did any of the Soldiers. I think that in order to make the decision whether document needs to be classified we have to have the appointment from the Secretary of the Army so only a Corps Commander or a Division Commander has that authority. The main system that the have, have the ability to chat with other analyst, it pulls data from databases, it provides maps, and it has a link diagram program on it as well. The primary database that the system pulls information from is 101 00773 CIDNE, there are others but that is the one that majority of the people use. I'm not sure if CIDNE is just an intelligent based database, there are a lot of human intelligence reports, signal intelligence reports, significant activity reports are in there as well. The reports in CIDNE database should be marked top and bottom as to their classification. All of the significant activity reports are stored on the CIDNE database, IED, direct fire, indirect fire, assassinations, threats etc. DUSTWUN is when we have a US person get kidnapped, and that may have been on this CIDNE database. They're all types of information that could be on the CIDNE database that is of a sensitive and secret nature. CIDNE contains multiple types of reports on the database. OBJECTION The defense counsel objected to the line of questioning stating the witness was speculating as to quite a few of the questions that was asked. The Investigating Officer instructed the trial counsel to elicit from the witness more definitive answers. The direct examination by the trial counsel continued as follows: The CIDNE database contains information about the current position of US forces. Between December 2009 January 2010 CIDNE contained information about how units reacted to IEDs. OBJECTION The defense counsel objected to the line of questioning stating relevance. The trial counsel stated that multiple specifications on the charge sheet referred to this CIDNE database, and the trial counsel wanted the Investigating Officer to understand the vast amount of information that is in the database. The defense counsel renewed his objection. VOIR DIRE 102 The CIDNE database is huge. There are a lot of sources of information on the database. Significant acts in the CIDNE database is just a small part of the CIDNE database. Significant activity reports should not have names inside of the reports. The trial counsel stated that the specification on charge sheet is for 380,000 records without limitation as to significant activity, the entire CIDNE database. The Investigating Officer overruled the defense's objection. The direct examination by the trial counsel was continued as follows: The CIDNE database contained a vast amount of information, pertaining to enemy tactics, US Armed Forces responses to those tactics, the different procedures that the United States Army used to rescue their Soldiers that were kidnapped, under DUSTWUN procedures, but I'm not too sure about the DUSTWUN procedures. Intelink is a search engine, it could be found on the SIPRNET which is a classified computer system that we use. Intelink works like a search engine, if you're trying to find information about a certain subject type the subject in and try to find information on the subject that you typed in. Then the information that will come back would be used in PowerPoint slides were documents Excel spreadsheets and that is the type of system that 35F would use on a weekly basis. When I arrived in Iraq on my second tour I was the S2 plans officer, basically it entailed me doing all of the analysis of the enemy threat for future operations. The analysis contained everything that we could find out about the enemy, and that 35F junior enlisted Soldiers would assist me with that. We had mission analysis and projects and we had very condensed timelines, so it was not common for 35F to get different parts of the project and then I will put it all together for one end product, and then I would present it to the Commander. If we had a situation that happened due to enemy contact, we would take all of the information that we could gather on the enemy and then we would put all that information on what they see on a map in order to try to determine the enemy?s approach and potential cache locations in which the information presented to the Commander. 103 n.n a a a n-dlw w-m a 4 Disruption zones are where the enemy would conduct the tasks to disrupt the units on the ground but not necessarily try to defeat them. An overlay is taken information and laying it on top of each other so that you can see a pattern. A situational template is the disposition of enemy forces in the operating environment, with their location and where we think they are operating. Cache locations are where they store their munitions. That 35F would pull the significant activity from the CIDNE database. In order to pull information from the system one would have to know how to use the system. I became the assistant Intel officer for the Brigade maybe late January or early February. Our mission was to provide the best threat picture to the Commander. Our focus was election security at the time. The elections were in March 2010. Our day? to?day operation consisted of us constantly updating the enemy threat Intel assessment in order to maintain a good threat picture and disrupt enemy operations. My office was located in the SCIF. All of the all-source Intel analyst work in the SCIF. My office was a room with computers. The main section was open. there was an additional room off to the side that nobody worked in, and the back room had all the signal intelligence personnel. There were two networks where PFC Manning and I worked at, the SIPR and the NIPRNET workstations. Neither my team nor I had access to systems that had a higher classification level than secret. We had the ability to talk about it, to look at it, but we could not directly access information higher than secret. The highest level of information that I could access was secret information. We had to burn CDs because we needed to share information with the Iragi?s, so for that purpose we were also allowed to burn CDs. While we deployed we often had discussions about operational security and it was understood that you were not supposed to do certain things that could compromise operational security. OBJECTION The defense counsel objected to the line of questioning stating that the witness was speculating. The Investigating Officer sustained the objection. The direct examination by the trial counsel continued as follows: 104 UB?mUiL-mMr?i The computers that that 35F access was on the shared network, which was the SIPRNET and its classification was secret. There weren't any restrictions for accessing the shared network due to the nature of our jobs. The general rule was that if you pulled information off the SIPRNET at work that he had a secret classification and it was only done for operational purposes. Once something is on a classified system, it is assumed to be classified and you can't take it off of a classified system and put it on unclassified system. That is considered spillage. Something that you are prohibited from doing is taking information off of a classified system and putting it on a personal computer, the Soldiers that worked for me knew this, because they signed a nondisclosure agreement. That rule was not supervised all of the time due to the fact that we had very few people that could supervise the Soldiers in doing that so we relied on the Soldiers training. PFC Manning was very good at compiling data. He was very good at importing and exporting Excel spreadsheets. PFC Manning did this type of work occasionally for me, and he was given understanding on what he was looking for in order to do this for me. PFC Manning was a part of the team that evaluated the violent extremist threat. OBJECTION The defense counsel objected to the line the question stating that it led to speculation. The Investigating Officer overruled the objection. The direct examination by the trial counsel continued as follows: For the mission in Iraq PFC Manning did not need to be looking at the Guantanamo Bay SOP, or Iceland. OBJECTION The defense counsel renewed his objection to the line of questioning. The Investigating Officer noted his objection. The direct examination by the trial counsel continued as follows: 105 mqmm-n-LuMH PFC Manning look for and pulled several things from the SIPRNET that did not pertain to his job, or was not relevant for him to perform his duties. I am familiar with the Apache video which is commonly referred to as, "Collateral Murder." I became aware of it when one of the Soldiers in the office was looking at it on a workstation computer which is connected to the SIPRNET, which was before April 2010. I do know that that video have been released before PFC Manning was arrested, I had a conversation with him about this video around the April timeframe. I was speaking the section because I like to know what they think, and I asked him what he thought about that video that was released and PFC Manning stated that he thought it was the same video from the SIPRNET, and I disagreed with him. That was not the last time that I had any communication with PFC Manning about that video. Then he sent me an e?mail with two videos attached to it side?by?side one from our SIPRNET and the other one that was released. He sent the e? mail to me on SIPRNET, and the video that was released to WikiLeaks was also now on SIPRNET. CROSS-EXAMINATION Questions by the civilian defense counsel: I became a part of 2nd Brigade in September 2009, and my duty position at that time was the assistant 82, and we deployed to Iraq in November 2009. When we arrived in Iraq I was the 82 plans officer. And during that time my focus was on election security. I did not have any Soldiers working directly for me as the 82 plans officer. One of the Soldiers helped me with these important projects was PFC Manning. I saw computer skills as a strength and I use those strength as a part of my work as to plan projects. When he was assigned project he completed the project in a timely fashion. From November 2009 until March 2010 that was the bulk of the work that I was doing. PFC Manning would also engage with me on other topics because he was interested in topics that we discussed. Sometimes he would find information for me based upon the things that we talked about. Even though PFC Manning did a very good word for me I did not believe that he was a very good analyst. But that is not surprising because all Intel on this need to grow in the job of being an analyst is not an easy one. Because PFC Manning was still a junior I never asked him to do any analytical work I just asked him to collect the data. My way of training 106 mummammr?J PFC Manning would be to explain to him after the project was completed the reason why needed the data for him to collect for me. They would go to analyst in the entire shop, Staff Sergeant Balonek that was because he was the most eXperienced. I have seen Soldiers listening to music in the T-SCIF, because it was on the shared network, the SIPRNET. And it was common for them to transfer music from the SIPRNET to another network, but that was not an acceptable process. No one ever told me that music on the SIPRNET was a violation of the information assurance security procedures. Soldiers would watch movies and play computer games on their computer workstations, and these were movies that they would pull from the shared drive. The machines that we worked on did not have MIRC chat on it but I believe it to be mission essential. And I also believe that Google Earth was mission essential as well. I'll use Google Earth to do analysis on terrain. Master Sergeant Adkins was speaking to PFC Manning within the SCIF but off to the side, and the conference room. When I went in there I seen PFC Manning was upset sitting on the floor and Master Sergeant Adkins was talking to him, he was sitting on the floor with his hands wrapped around his knees, kind of like curled up in a ball. I did not speak but Master Sergeant Adkins later on that day to find out what was going on. I brought Specialist Showman in later on that night because I needed her to find a certain product. No one else in the SCIF could find that product, I had someone go and wake her up, she was not happy about being woken up and having to come back and work. At the time of the incident I had my back to both PFC Manning and Specialist Showman, because I was on the phone. Specialist Showman was upset with PFC Manning due to the fact that he was playing a game on the computer, and I overheard PFC Manning say, "You need to calm down because Captain Martin was the one who brought you back in here." Then I heard curse words and some shuffling then I turned around, and I saw Specialist Showman with PFC Manning pinned on the ground. Later, after everything calmed down Specialist Showman stated that PFC Manning struck her in the face. Then I spoke to Master Sergeant Adkins and told him that PFC Manning needed to be moved from the SCIF, and that his weapon needed to be taken from him, and that he needed to go to behavioral health. I viewed this as a standard response of any Soldier that shows violence towards another Soldier. I also felt that PFC Manning needed to have derogatory information put into his file, which could have resulted in him having his security clearance suspended and 107 00779 ultimately revoked. Basically the derogatory information process as a way of tracking Soldiers with security clearances. Since Master Sergeant Adkins was the SSR it was his duty to report that information. I was aware of a previous incident between PFC Manning and Specialist Padgett, it occurred early in the deployment. I believe that derogatory information incident should've been filed on that incident as well. 86 has the power to suspend access to classified information for Soldiers who have derogatory information in their files. OBJECTION The trial counsel objected to this line of questioning stating relevance. The defense counsel stated that he was asking the witness to tell the Investigating Officer about the derogatory information process and how quickly it could be implemented. Investigating Officer stated that he made a ruling as to the relevance of this line the question earlier before the defense counsel to keep his questions brief. The cross-examination by the defense counsel continue as follows: Once the Soldier clearance is suspended by the Commander they do not have access to classified information. REDIRECT EXAMINATION Questions by the trial counsel: After the incident between PFC Manning and Specialist Showman I recommended that he be removed from the SCIF, and he was removed from the SCIF which happened while Captain Lim was on leave. I was not a part of any punitive measures so I'm not sure what happened to PFC Manning for that incident. The proper handling of classified information is a fundamental principle that all Soldiers, regardless whether or not they are 35F, should know. RECROSS-EXAMIHAIION Questions by the civilian defense counsel: 108 MI?lcakomcmmawmr-ono Having a security clearance is not a right, it is a privilege whether you are able to keep your security clearance depends upon your actions. If you have adverse action you will lose your security clearance. [The witness was permanently excused, duly warned, and withdrew from the courtroom.} [The Article 32 hearing recessed at 1103, 18 December 2011.] [The Article December 2011.] 32 hearing was called to order at 1120, 18 Investigating Officer called the hearing to order, and stated that all parties that were present prior to the recess were again present. SERGEANT FIRST CLASS PAUL ADKINS, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: The witness stated that on the advice of his counsel he invoked his Article 31 rights. The defense counsel stated the witness invoking his Article 31 rights is an improper basis at this point. The trial counsel not intend on granting stated that the Convening Authority did the witness testimonial immunity. The Investigating Officer stated that since the witness invoked his Article 31 rights he is unavailable for questioning. WARRANT OFFICER ONE KYLE BALONEK, U.S. Army, was called telephonically as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: 109 The witness stated that on the advice of his counsel he invoked his Article 31 rights. The defense counsel stated the witness invoking his Article 31 rights is an improper basis at this point. The trial counsel stated that the Convening Authority did not intend on granting the witness testimonial immunity. The Investigating Officer stated that since the witness invoked his Article 31 rights he is unavailable for questioning. SERGEANT CHAD MADARAS, U.S. Army, was called telephonioally as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I am assigned to 2/10 Mountain in Fort Drum, New York. I met PFC Manning at Fort Drum and I worked with him on one JRTC rotation and then I worked with him in Iraq. I met him in either the summer or fall of 2008. I am a 35F, intelligence analyst, PFC Manning has the same M05 as me. I attended AIT at Fort Huachuca, Arizona. We learned how to read military signals on a map, how to read a map, do PowerPoint presentations, and we learned about classified information as well. I arrived at this unit in November 2007. PFC Manning and I attended several classes in the summer of 2008. At JRTC they just push down information we analyzed and performed our jobs in an environment that was simulated to what it would he like in Iraq. At JRTC we both were different shifts. Then I deployed with PFC Manning, I went in October of 2009 and he showed up a few weeks later. I worked in the Brigade SCIF at FOB Hammer. PFC Manning worked at the same place. I was a Shia team analyst and so was PFC Manning, but we worked different shifts; he worked the night shift and I worked the day shift. We shared a workstation, we shared computers as well. We supported Mr. Balonek in finding any information that he had on Shia targets in our area. Typically, we would just read reports and try to link together any targets that might be operating together. The majority of the tasks that we did not complete on the daytime were left for the night shift. PFC Manning often did not complete the tasks that were left for him. We used Intelink, ArcMap, and CIDNE Iraq to do our job. Never searched for WikiLeaks, Iceland, Julian Assange, retention, Birgitta Jonsdottir, or Rekyavik. 110 00782 Sometimes we would use Intellipedia, to search for groups and names and find out if there is any more information on a group, terrorist groups. I never use PFC Manning's user profile for anything. I didn't know any of his passwords either. My computer operated out of the ordinary all of the time, and whenever that happened I would have Mr. Milliman get it Up and running again for me. Questions by the civilian defense counsel: I first met PFC Manning in 2008, from what I remember of him he was interested in US politics. At JRTC, if the computer wasn't working PFC Manning would be the one to try and fix it. I'm not really a computer guy, so I don't know much about computers other than the basic operating systems. The training that PFC Manning and I had at Ft. Drum did not instruct us as to what we could and could not put on the computer. I was a part of the advanced party for Bravo Company, I left Fort Drum in October 2009 and I arrived at FOB Hammer around 15 October 2009. During deployment I worked at the SCIF, I worked as part of the Shia group, as did PFC Manning. I worked day shift and PFC Manning worked the night shift, there was no NCO supervisor during the night shift. The night shift was tasked with finishing up the work that the day shift was unable to complete. I do not know if during a deployment PFC Manning was suffering from any issues. I saw a couple of emotional outbursts that PFC Manning had during the deployment. Sometime around December 2009 January 2010 Master Sergeant Adkins had asked PFC Manning to remove a curtain that was covering up a map I stood up to go and do it Master Sergeant Adkins told me that he instructed PFC Manning to do it then PFC Manning stood up slammed his chair on the ground and that is when Master Sergeant Adkins took PFC Manning outside and tried to calm him down. To the best of my knowledge no disciplinary action happened to PFC Manning because of the incident. To my knowledge out of all of the incidents that PFC Manning had while in Iraq no formal punishment was done on him. OBJECTION Assistant Trial Counsel 2 objected to this line of questioning stating the Investigating Officer already made a ruling on this type of questioning. 111 The defense counsel stated that his line of questioning goes to what the witness actually saw happen in the SCIF. The Investigating Officer instructed the defense counsel to limit his questions to only what the witness saw. The cross-examination by the defense counsel continued as follows: Based upon PFC Manning?s actions from what I've seen I did not believe that he would cause harm to himself or others. I do not think that PFC Manning had friends within the unit. The Investigating Officer informed the defense counsel that his line of questioning seemed attenuated. The defense counsel stated that according to RCM 405 he was allowed to perform discovery and given latitude to cross?examine witnesses. The cross-examination by the defense counsel continued as follows: My personal knowledge is that it seemed as if PFC Manning was an outcast within the unit, because he kind of separated himself from other people in the unit. I do not recall any training being done on SCIF rules and regulations. I did see some Soldiers display movies, listen to music, and play games on their workstations in the SCIF. One of the reasons why the computers that PFC Manning and I worked on crashed could be because there was too much stuff saved on the desktop. MIRC Chat was on our computers; it allowed us to communicate with other units. It was added to our computers only after we got to Iraq. I don?t know how someone would add a program to the computer only because I do not know a lot about computers. REDIRECT EXAMINATION Questions by Assistant Trial Counsel 2: PFC Manning and I both have the same MOS. OBJECTION The defense counsel objected to that line of questioning stating Assistant Trial Counsel 2 was leading the witness. 112 The Investigating Officer overruled the objection. The redirect examination by Assistant Trial Counsel 2 continues as follows: PFC Manning and I both signed nondisclosure agreements. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] [The Article 32 hearing recessed at 1157, 18 December 2011.] [The Article December 2011.] 32 hearing was called to order at 1336, 18 The Investigating Officer called the hearing to order and stated that all parties that were present prior to the recess are once again present. The Investigating Officer advised the participants and persons observing that this is a formal investigation. In order to protect the dignity and decorum of these proceedings I would ask that all present refrain from interrupting or otherwise disturbing the investigation. Should any person nevertheless engage in speech or conduct that interferes with the dignity and decorum of the proceedings, they may be removed from this court. Additionally, the rules of the hearing provided cell phones, blackberries, and similar devices are not authorized in the hearing and any person with such device may be removed from this courtroom. JASON MILLIMAN, Civilian, was called telephonically as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the trial counsel: I am currently a network engineer working with Task Incorporated. I served in the military for twenty-one years. Two years and seventeen days as the 723, a combat telecommunications center operator and 33T is an electronics repair guy. The electronics repair technician is responsible 113 for repairing electronics for military intelligence. We repaired all of their electronic equipment. At that time that job you had to have a top secret clearance, but now I believe they only have to have a secret clearance right. I retired from the Army 31 August 2005, then I took a job working for General Dynamics, after that I took a job at Sparta, and after Sparta I worked for C282. I was deployed from November 2007 until December 2010. While I was deployed in Iraq I was stationed at several different bases. I was at FOB Hammer for about a year from July 2009 until July 2010, but I'm not positive. While I was there I was a field software engineer, I worked seven days a week. I was there the entire time 2nd Brigade, 10th Mountain Division was deployed to Iraq. DCGS A, which stands for distributed common ground systems or station I can't remember which one. It was the system in which the use to keep databases on so they can obtain information about threats in the area and it was my job to ensure that the system_stayed up or never broke down. Basically there were only two people that were able to perform system maintenance on the laptops if anything happened, those two people were me and what they called a mentor. Typically I would have to work on one computer a day, and that is in approximation. Corrupted PST and other information happen quite often with people who are afraid to delete anything off of the computer. Depending upon the nature of the problem, if it was a fairly simple problem the mentor could handle it or if the computer would not boot up or anything then I would have to take the computer to my office to work computer could not be fixed and I would take the hard drive out and I would replace it with another hard drive that was working and get the computer back to the Soldier. I know Private First Class Manning is one because he was one of the in the SCIF where I worked. I did not interact with PFC Manning every day I saw him every day but majority of the time I would interact with PFC Manning is if he had a problem with his machine. I saw Sergeant Madaras more than I seen PFC Manning due to the fact that he worked on dayshift. Their computer seemed to be the one that had the most issues, when I asked them about it neither of them knew what was wrong with the computer and PFC Manning said he didn't touch the computer to try to fix it. The other interactions that I had with PFC Manning would be that we may sit at the same table at chow not very often. I really didn't have that much communication with PFC Manning. I really don?t know too much about PFC Manning's skills on working'on the computer. HA mameLuMnm.m OBJECTION Defense objected to this line of questioning stating speculation. The trial counsel stated that he will withdraw the guestioo. The direct examination by trial counsel continued as follows: PFC Manning made known on the first day he used to have a computer repair business of his own, which would've further he has some sort of knowledge more than the average user. PFC Manning has made the statement that ?if people knew what I could do with the computer they would be amazed," I just chalked it up to him bragging. I know of the program WGet, but I never used it myself. I was the only one authorized to install programs on those computers, well also and some limited cases the mentors. I'm not sure if Wget was an authorized program on that system. I did not recall installing a program on the system. MIRC chat was given the authorization to be installed on those systems due to the fact that majority of the units use it to communicate with one another. Soldiers could install that software to the desktop, they were not supposed to but they could have done it if they wanted to. CROSS-EXAMINATION Questions by the civilian defense counsel: I retired in 2005. At the time that I retired I was an E7. Eventually I got a job as the field software engineer, which job I did from November 2007 until December 2010. I was not the only field software engineer in Iraq there were others that were out there that could lend a helping hand if I needed. Heat was a major problem for those systems. They would run hot even in an air?conditioned room. Prior to me having Soldiers place Gatorade caps underneath their systems so air could get to them they would crash quite often. I did not only work on them when they crashed but with a lot of problems I had to work on. But when they did crash they had to be repaired by me. 115 mummari00787 There were a lot of profiles on those machines for various reasons. If there was a lot of stuff saved on the desktop it would have a problem logging onto their profile so we would have to delete their profile and create a new one sometimes that fixed the problem. Those systems crash for numerous reasons. Sometimes when those systems crash you will be able to recover the information of the hard drive and then sometimes you would not be able to become information. One of the ways that would be able to recover the information of the hard drive after it had crash would be by using a universal driver, which would allow me to connect to the hard drive as if it was a external hard drive, then I would be able to get the information off the hard drive the same way you would get information off a thumb drive. If Soldiers wanted software added to the system they will come and asked me to add that program to their system since I was basically the only one who had administrative rights to add programs to that system. I was asked to install the software that would allow the Soldiers to shrink the file so that it could be sent over e?mail. There was a series of channels that was required to be gone through in order to install software on their system that was not already approved and get. We took a couple of days to get the software approved. I don't know if anybody who approved the installation of the software was in the military. I was asked to install MIRC chat, it is very similar to instant messenger it was not part of the original baseline program. I did request to have software programs installed on the system that were denied that was initially, I don't recall what the name of the program was. The determining factor for adding a software program to the system was whether or not it worked well with the other programs that were already on the system. Sometimes software pregrams would be installed on the system without me knowing it, but it was not a common occurrence. I did not recall seeing WGET on those systems. REDIRECT EXAMINAIION Questions by the trial counsel: a self executable program could be run from a CD and not from the desktop. I was never asked by PFC Manning to install WGET onto his machine. EKAMINAIION BY THE ARTICLE 32 HEARING Questions by the Investigating Officer: 115 r?lr?I HOW A ?mentor? is a subject matter expert on intricacies usually of a program called ARC GIS, this one program is so complicated you can get a masters degree in this program alone. It takes a long time to become an expert in that program and they would help Soldiers use it. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] [The Article 18 December 2011.] 32 hearing recessed at 1417, [The Article December 2011.] 32 hearing was called to order at 1428, 18 All parties that were present prior to the recess are again present. CAPTAIN THOMAS CHEREPKO, U.S. Army, was called telephonically as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the trial counsel: I am currently assigned to US forces I'm the deputy CIS officer for Force Command Madrid. A CIS officer is a computer and information systems officer, my duty here is to assist the CIS officer in planning and executing for training exercises and contingency operations for multinational NATO forces. My branch in the Army is a functional area 53, an Information Systems Manager. There are several different jobs that we can hold so it depends on what your duty description is at the current position your working. I have been in the Army for 16 years; I have been and automations officer since 2009. Prior to this MOS I was an engineering officer. I did that for approximately 4 years. Before becoming an officer I was a 19K that is an armored crewman. The training that I received was I went through the function area fifty?three overview training at Fort Gordon Georgia, the information systems manager course. That course is broken down into three phases the first phase is basically networking the second phase is server systems, and the third phase is information security. U3 00789 My first assignment upon graduation was with 2nd Brigade, 10th Mountain, as the Brigade automations officer, and my subsequent assignment is here at NATO as the deputy CIS officer. I have deployed before to Iraq three times, in 2005, 2006 until 2008, and then again from 2009 until 2010. On my last deployment I was stationed on FOE Hammer, Iraq. I first arrived at that Brigade on October 1, 2009. We arrived at FOB Hammer after the bulk of the main body had arrived, a few days after TOA had occurred. While I was deployed I was the Brigade automations officer, I was responsible for the NIPR and SIPRNET. The NIPRNET is used strictly for unclassified information, while on the NIPRNET you can surf the Internet basically the same websites that you could go on at home you could go on using the NIPRNET but with some restrictions, you're not supposed put classified information on the NIPRNET. The SIPRNET is a global intra?net for the Department of Defense, it is a closed network that is classified up to secret. In order to have a separate account you had to have a secret classification, completed the required training, and shown a need that you needed to have access to the SIPRNET for operational purposes. An AUP is an acceptable use policy, it is a document that you review and sign and it tells you what you can and cannot do on the network. I don't remember if there's anything specific on classified information while I was taking the information assurance training online, it is just centered on all information security within the government work area. Several of my Soldiers and I were the administrators for the SIPRNET. A network administrator monitors, maintains, and ensures that there is communication twenty-four hours a day. The system administrators were the only ones that were authorized to install software programs on SIPRNET. I have heard of the program WGET, that program was not authorized to be installed on SIPRNET. I am familiar with MIRC chat. It is a program that allows you to communicate with a different end terminal, similar to instant messenger. There was an operational need to use MIRC chat, without it we would not have been able to communicate with the aviation community. To my knowledge I do believe it was authorized on the system. There is a requirement in the Army regulation for everyone who uses the system to sign an AUP. Private First Class Manning was already in theater when I arrived in Iraq. I could not find PFC Manning's AUP when we were asked to produce it. We were unable to find a few others as well to include mine. 118 00790 Basically, an tells you what you are and are not permitted to do on the network, and that the ultimate responsibility of enforcing these rules falls upon the user. A shared drive is much larger than a thumb drive that you have a home, it is a server and is assessable to everyone on the network connected by an IP address to the main server of the network and uses it to connect to that drive and use it as a hard drive for their work as well. Everyone referred to that drive as the drive, the classification of the drive was secret. The drive has been passed down from unit to unit for the past several years, there were movies, music, and games on that drive as well. There was no technical restriction to prevent a Soldier from burning a CD of information that came from the SIPRNET, there was no requirement and there was no need to. There was nothing to prevent a Soldier from burning a CD with classified information on it and taking it to his CHU. CROSS-EXAMINATION Questions by the civilian defense counsel: I worked as the automations officer from my arrival in 2009 until I just last summer. The job of the Brigade automations officer entailed this to establish manage maintain and secure the Brigade's digital communications. My day will begin by most people on the staff, I would check to ensure all the backups have been installed, I would check my e-mails, then I will proceed to check with the Soldiers at the help desk to see what the major problems were, and then the rest of my day consisted of troubleshooting networks and doing everything that I could to keep the network operational. The functional area 53 course overall focuses on the technical aspects of running the server running the network the course of the to give a fairly good, it is the civilian Cisco Academy, the civilian Microsoft Academy, that we attend for the courses it prepared us about as well as you could in a nine-month course. The course is sort of like any basic course, they train you on the most common aspects of the job. I could have possibly given a sworn statement on January 6, 2011. I don't recall everything that I said in my sworn statement. I do not have my sworn statement or any notes available to me because that is what I was instructed to do. The course that we went to did not teach us the way the way the Army does things. I arrived at FOB Hammer I believe it was the middle of November 2009. I arrived after RIP TOA. Immediately 119 after I graduated from the course I worked as the Brigade automations officer. When I got to the Brigade and Iraq I was officially assigned the information assurance manager job I have orders assigned to that job, I didn't have the official orders until after I got in and got settled in that job. I was the person in charge of ensuring the information assurance practices were in place and that training was being done as required. I did not conduct any additional training that was required for the Brigade as a whole but for the Soldiers that work for me I did conduct additional training for information assurance. I coordinated through Brigade and II Corps to have a team come in and assist the security of the system that we were working on at FOB Hammer. Personally I believed that we would be fine, but I was told that the tactical network at 2nd Brigade was not accredited. A package? is the collection of documents that are submitted through Division to Netcom that would verify that the systems and network is for software all whatever piece of equipment that you are attempting to accredit meets the DOD requirements for security and is therefore accredited through the accreditation process. I did not complete a DIACAP package I had not been trained in the preparation of a DIACAP package either. In March 2011, I received a letter of admonishment in that letter was for failing to ensure that the Brigade network was properly accredited. I would occasionally go to the TSCIF to do some troubleshooting and to pick up other officers to go to lunch. OBJECTION The trial counsel objected to the line the questioning stating the defense had not laid a proper foundation. The defense counsel responded by saying he was asking information assurance questions of the witness. Investigating Officer overruled the trial counsel's objection. The cross-examination by the civilian defense counsel continued as follows: rm 00792 I did not receive any inspections while I was downrange, and I do not know why. DAIG-IA stands for the Department of the Army Inspector General inspection, the Brigade went through one well after we deployed. I never inspected the SCIF. I did view inspecting the TSCIF as a part of my job. I'm not sure if the TSCIF was inspected but I think that it was. I do not know the TSCIF conduct itself inspections. I do not know if there was the information assurance officer that was specifically assigned to the TSCIF while we were deployed. I do not know what the special security representative is so I am not sure if the TSCIF had one. I did know that there was music on the drive, there was not one central location for where the music was stored. Music was not authorized on the drive, and whenever I saw music I would take it off. I?m not sure if anyone was punished by having music on the drive, I made a recommendation as to keeping music off of the drive but other than that, that was about as far as it go. Movies, music, games, were not authorized to be on drive and as a matter of fact it specifically violated the agreement. I alerted my chain of command of all the unauthorized programs on the network and I requested that they put a stop to it. I'm not sure what actions came out of it but I do know that it stop once we disconnected the drive when reading when we redeployed to come back home. I cannot say for sure whether or not 2nd Brigade was undisciplined in their enforcement of information assurance, because I have nothing else to compare it to. Depending upon what type of program they wanted to install there were different ways that they could go about doing it. They will program the ticket at without going through an administrator and in other programs they had to go to an administrator to add that program. There was no memorandum that stated will not put executable files on your system, besides the AUP and the information assurance training that everyone received. If I would've found something light on authorized software that was on if Soldiers computer the first thing that I would do would be to notify their supervisor and inform them of what I found informed him of the repercussions of what I found could be and then I would leave it up to the first line supervisor to determine what to do from there. This supervisor told me that it was a mission essential program then I will have to call up higher to get approval to have'the software left on the computer. I am not all that sure about how the process worked 121 to get unauthorized software left the computer I would have to look it up, but offhand I cannot tell you that right now is not a quick process. More likely it would not have gotten approved during a deployment. I have seen programs that are run as executables from the desktop, I was given the CD from CID that was an executable file, but I'm not sure whether or not it was an authorized program. If I was actively looking for an executable file on the shared drive it would not be hard for me to locate that file. I do know what a DEROG report is, and if the form is filed the 86 will be responsible for suspending that access to SIPRNET, and it can be done in less than a minute. I tried to get rid of the login accounts because it is just good practice to have someone's name associated with account instead of just their duty position. With role+based accounts I never really knew who was actually using that account. Whenever the computer is reimaged, all the user profiles that were on the computers and then my Soldiers would have to go in and create a new user file underneath their profile to ensure that the computer was reimaged properly. I was notified of PFC Manning's arrest the night that it occurred. I do not know the exact day I just know that it was the end of May 2010, by Captain Lim. I spoke to several CID agents about PFC Manning's arrest. They were asking me about these server logs that would show activity on the network and activity on shared drive and e?mail logs that would show activity on e?mails. I was able to pull some of them up but we did not maintain all of them, we only had a limited amount of space so we only focused on the ones that pertain to fixing a computer. CID did ask me to make an image of the computer, they asked him to do that the same night they showed up to our camp to arrest PFC Manning. One of the Soldiers created that image I'm not sure which one but I know it was one of my Soldiers who created it. I don't recall exactly which one they asked me to make the image for but I believe it was for the supply Sergeant?s computer. I was concerned about making a forensic image due to the fact that I assisted in an investigation prior to this one and I just wanted to ensure that whatever I did would not taint the data collected in any way. In response to that the CID agents told me that the computer has not been seized yet so there is no need for you to worry about messing up the computer and it has been so long since the incident has happened it is probably already corrupted. I was asked to make a copy of PFC Manning folder and 122 log files from the server after the arrest of PFC Manning. I spoke with the agent from CCIU who walked me through the process of how to make a copy that maintains the metadata, and that is when the CID agent sent me the executable program. REDIRECT EXAMINATION OBJECTION The defense counsel objected to the trial counsel line of questioning stating that he was leading the witness. The Investigating Officer overruled the objection. The redirect examination by the trial counsel continued as follows: I am not entirely sure what the log data contained. OBJECTION The defense counsel objected to the trial counsel's questioning stating releVance. The Investigating Officer overruled the objection. The redirect examination by the trial counsel continued as follows: Nothing happened to my system per se, but a week or two later the Brigade executive officer had a meeting with the staff to figure out what we can do to prevent this from happening again. OBJECTIOH The defense counsel objected to the trial counsel's questioning stating that it was argumentative. The trial counsel stated that the defense asked the same question to the witness during cross?examination. The Investigating Officer overruled the defense counsels objection. The redirect examination by the trial counsel continued as follows: 123 To my knowledge I do not believe any Soldier had disciplinary action taken against them for violation of the information assurance rules. RECROSS-EXHHINATION Questions by the civilian defense counsel: During our meeting with the Brigade executive officer we put together a sort of corrective training for the derogatory report process, basically that was designed to reemphasize to leaders that they needed to follow the proper procedures when Soldiers. [The witness was permanently excused, duly warned, and ended the phone call.] [The Article 32 hearing recessed at 1538, 18 December 2011.] [The Article 32 hearing was called to order at 1551, 18 December 2011.] The Investigating Officer called the hearing to order and stated that all parties that were present prior to the recess were once again present. The trial counsel requested that the Investigating Officer close the hearing to determine if any classified information in this case should be heard in a closed session. The Investigating Officer closed the hearing to determine if any classified information in this case should be heard. [The Article 32 hearing closed at 1553, 18 December 2011.] [The Article 32 hearing opened at 1745, 18 December 2011.] Investigating Officer called the hearing to order reflected on the record that the hearing is now open. All parties that were present prior to the hearing being closed are now again present. The Investigating Officer stated that during the closed hearing he made the determination that classified evidence was properly classified and that protecting classified information 124 is an overriding interest that outweighs the value of an open proceeding and considered other methods of protecting classified information and determined that no other means other than closure can protect an overriding interest. There will be a closed hearing tomorrow morning no earlier than 10 AM. The defense objected to the closed hearing. SPECIAL AGENT DAVID SHAVER, Civilian, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by assistant trial counsel 1: I work for the Army Computer Crimes Investigative Unit. I began working for them in 1999, at the time I was in the military as a CID agent and an investigator. I am in a supervisory position now, I am the Special Agent in charge of the digital forensics and research branch. Our job is to conduct examinations of digital media in support of CCIU cases. The primary mission is to investigate any intrusion into any Army computer worldwide, however we are tasked to do other stuff. I have received training from several locations. The first would be the Law Enforcement Training Center, in Glencoe, Georgia; the Defense Cyber Crime Center in Maryland, and I have been trained on various commercial products as well. Products such as a forensic product called ENCASE, which is a computer forensic program that allows you to examine digital media. I received training on Windows, Unix, Linux, and Macintosh. I hold several certifications; I am a certified computer crime investigator, an ENCASE certified examiner, and net plus. The certification is a hardware?based certification. Net Plus is a network?based certification. I have published articles related to the field of computer forensics. I co- authOred a chapter on Windows forensics in the handbook of digital forensics investigations. I have given several scholarly presentations. A virtual machine is where we developed a process to take a forensic image and turn it into a virtual machine on your host computer. By using a virtual machine you can gain the perspective of examining the computer as a subject has used it. 125 nomadic? I was notified of this case in late May of 2010, I examined pieces of media related to this case. The first things I examined were two SIPR computers. They were his primary and secondary computers. An IP is an Internet protocol address, which is a set of numbers that are unique to each computer. I am familiar with Intelink, Intelink is Google of the SIPRNET. I examined Intelink logs, those log files ranged from October 2009 until May 2010. From the logs I was able to obtain the majority of the activity that happened on the computer. I identified some kind of query and then I ran a search against log files for that query, after that I verified it as well. I put them into an Excel spreadsheet for ease of review. I noticed that there were a lot of searches that seemed out of place, the keyword searches that he was using seemed out of place for his job. [The trial counsel published screenshot documents for the witness to view on a monitor.] That is a screenshot of the Excel spreadsheet that I created called keywords. It is a filtered spreadsheet of the keyword searches for WikiLeaks. From November 2009 through May 2010, I found over one hundred searches for WikiLeaks under PFC Manning's profile. This is a different screenshot from that same Excel spreadsheet; this time we filtered on the keyword Iceland. The first search for Iceland was 9 January 2010, it is only filtered on the keyword Iceland and this came from PFC Manning's profile. This is another screenshot from the same Excel spreadsheet; this time I filtered on the keyword retention, and it was searching for the retention of interrogation videos. That search was done 28 November 2009, that was the first time that he searched for it. The Intelink program also the captured the use of a WGET program to download a large number of files. WGET is a command line utility to download files from a Web server. Command line means it is non graphical, meaning that you have to open up a command prompt and then you are able to type the commands, it is like a 003 program. WGET is not a standard program on an Army computer. As part of my job to investigate intrusions, I get a list of authorized software and WGET is not on that list. The first time that I saw PFC Manning access WGET was March of 2010. This is another portion of the screenshot of the Excel spreadsheet that I created for Intelink. This portion is filtered on the word WGET. The server in question was a SharePoint server, so it stores files by ID number, it is a database. The numbers beside the file ID number represent the action that was taken for the searches, if a document was 126 downloaded, if the search came back, file not found, things of that nature. There were over seven hundred examples of the computer using WGET commands for the month of March pertaining to JTF Guantanamo Bay detainee suspects. I know this because I downloaded the same documents using the same program, and I used the same path. And I know that they were the same documents that were on the WikiLeaks website because I compared the two. When we conduct a forensic examination, the first thing we do is we verify the hashes, that the acquisition matches their verification hashes. We scan the computer for antivirus and then we generally conduct keyword searches. So when I began my forensic examination the first thing that I look at is the hash values of the images. The hash values have to match because if they don't match, then there is a problem with the image. The hash values of the acquiring image and of the image that I looked at matched. The primary tools that I use to examine computers are ENCASE. I plug keywords into ENCASE and then I search for keywords, I search both the allocated and the unallocated spaces. Allocated space is places on the hard drive, files that are created that you can see, such as a Word document or e?mail. Unallocated space is places on the hard drive which have not been used yet or it may contain deleted files. I was also able to recover deleted files, because deleted files are still on the hard drive until something is written over top of them. With respect to the [dot] .22 computer, I was given a series of chat logs, they were statements concerning the Department of State, JTF Guantanamo Bay Cuba, things like that, so that is where I started my keyword list. The chat logs were collected from Mr. Lamo, I was looking for things that were identified in the chat logs. I did a search in the allocated space, and I found four complete JTF Guantanamo Bay, Cuba detainee assessments. I knew that they were detainee assessments because I read them. They were under PFC Manning's user profile. This computer had two web browsers on it, Internet Explorer and Firefox. The configuration for the Internet explorer web browser was a standard Army configuration where the user could not clear the Internet history. The Internet history on a Windows computer would be stored in a file called index.dat. It stores Internet information as well as files that were opened up on the computer. The other web browser on the computer was Firefox, it was configured to have Intelink as its homepage and to auto start private browsing when it started. 12? I found a [dot] .zip file under PFC Manning's user profile and inside of it were over ten thousand complete Department of State cables, web pages. I also found an Excel spreadsheet, it was a spreadsheet with three tabs, the first tab was WGET, the second tab was 0310-0410, and the third tab was 0510. In the second tab was Department of State message record numbers that were published between March 2010 until April 2010, they were sequential, whoever did this was obviously keeping track of where they were, the first number was 251,288, and then a sequential number after that. To my knowledge WikiLeaks has released 251,287 cables. On a third tab it was all of the Department of State cables that were published in May 2010. It was just message record numbers not the full cable. There was a WGET tab in there as well, it was over ten thousand message record numbers, the second column was the command line using WGET that downloaded that message record number from the Department of State net centric server. The first column is the message record number, and there's about ten thousand there. The next column is a script, it's a mathematical computation basically saying take everything that is in column A and put it in column B, but in the right path. The Investigating Officer stated that it would be easier to understand if they were able to see the document that the witness was talking about. The trial counsel informed the Investigating Officer that although the document is not classified it is currently marked as classified and that is the reason why he was not able to display the document in open court. The defense counsel objected to all parties viewing the document from the jury box stating that it would be better for everyone to recess and reconvene tomorrow when the problem is fixed. The trial counsel stated that his direct line of questioning would not take that much longer and requested to continue with the questioning of this witness. The Investigating Officer stated that it would be better for all if the trial counsel just continued with his line of questioning explaining the document in detail. 128 memmemloua The trial counsel gave the document number to the Investigating Officer so that he would be able to review it once he went back to his chambers. The direct examination by Assistant Trial Counsel 1 continued as follows: In Column it is an Excel formula, to take what is in Column script so it could identify the file. After you have all of column filled, you would be able to copy that column as text and put it in a batch file: and run the batch file in a command script. There were about ten thousand commands in that batch, and I saw those message record numbers on the left, they were downloaded into the original zip file I discussed earlier. This is all under PFC Manning?s user profile. In the Windows prefetch folder there were several instances of WGET being run. Prefetch is a Windows feature to speed up the computer. The computer will identify programs that you use on a regular basis, so the next time you run the program it will load quicker. You can run that program WGET at the same time from various locations; that way you will be able to download a lot of files simultaneously. WGET was in PFC Manning?s profile, it appeared 4 May 2010. It was not the first time that he used that file because there were prefetch files predate that. Within the Windows temp folder there were two files, these files each contained approximately 100 complete Department of State cables, these files were in CSV format and they contained a base 64 encoded version of the cables. A CSV file is a Comma Separated Value. It is just a way of moving files from one database to another. Base 64 is an encoding scheme, it transforms data and documents into a different format. Someone would do that to streamline the process of taking the cables out; it took away all the punctuation, all the spacing, and just put the information in straight base 64. I found evidence in the unallocated space; I identified thousands of the State Department complete cables. They were unclassified or secret. They were not all complete. Other information that I found relating to detainee information was ISNs, the Internment Serial Numbers, which are a unique pattern of characters. I did a search for them and I found hundreds of documents with that convention. The ISN is the internment serial number and is used as an identifier. I 129 00801 found ISNs on PFC Manning?s computer. index.dat file- They were found in the I am familiar with the charges and specifications. I found, in the allocated space, the movie, actually several movies: one was the released version from WikiLeaks and there was another version which appeared to be the source file for it. The first instance of that video being there was March, through examination of the restore points I was able to determine that. Restore point is another Microsoft feature and they are created when an operating system is updated or program is installed so if there's a problem with the computer you can go back in time and get your computer to work again. I do recognize that image, this is a screenshot of the ENCASE program displaying from left to right the filename which is the restore point, the middle column shows you the 12 July 2007 CZ engagement zone file was present under PFC Manning's profile. I believe the first time it was viewed was 2 March 2010. There were no restore points before the month of March due to the fact that the computer had problems and it was reimaged prior to that. I found information relating to an investigation done on a military operation in Afghanistan. Within the index.dat file there were hundreds of files which appeared to be part of the incident, and I recovered deleted PDFs and JPEG images pertaining to the Gharani incident. That is an image of the index.dat which I put into an Excel spreadsheet for ease of viewing. It is just a snippet of it. From left to right you have the date column and to the right of that you have the URL, what sites were visited. The date is April 10, 2010, says Bradley.Manning as a file. That means that it is a file on the computer not a website and then you continue reading and it gives the path. It appears that somebody using the Bradley.Manning user profile downloaded a large number files concerning the Farah incident and at the end created a Farah.zip. All of this was time sequential. In unallocated space I recovered numerous JPEG images and PDF files, they appear to be from presentations, screenshots of presentations, pictures from aircraft, reconnaissance over the combat zone. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] [The Article 32 hearing recessed at 1834, 18 December 2011.] 130 mummieme 00802 [The Article 32 hearing was called to order at 0934, 19 December 2011.] The Investigating Officer called the hearing to order, and stated that all parties present prior to the recess were once again present. SPECIAL AGENT DAVID SHAVER, Civilian, was recalled as a witness for the prosecution, was reminded that he was still under oath, and testified in substance as follows: Questions by the civilian defense counsel: I did the COmputer forensics on both of the computers that were sent to my office that PFC Manning usedbit analysis of all the SIPR computers in the SCIF. I do not know the total number of SIPR computers in the SCIF. I do not know if the program WGET was on the other computers. WGET is a program that is used for data miningdata mining. Yesterday I stated that WikiLeaks released over 250,000 cables. And during my analysis I found diplOmatic cables in the file called files.zip, that file was found in allocated computer space. I did not compare the cables that I found in the file with the cables that were on the WikiLeaks website. None of those cables that I found in the files.zip folder were on the WikiLeaks website. The computer that I found these cables on was a SIPR computer. I was not aware that were directed to look at these cables. I was not aware that no password was required to access these files. I did not know that there was no prohibition for any analyst to download these files. you cannot date and timestamp things that are in the unallocated space. And with unallocated space there is nothing that you can tie to one particular user. I found the video that has been called the Apache video; it was on one of the SIPR computers. I did not know that the Apache video was a topic of discussion among the at FOB Hammer. I did not know that these were talking about and watching this certain Video back in December 2009. If a file has been deleted and the space that was allocated and has been written over I cannot find out what that file was. I testified that WGET was used to download hundreds of files onto the allocated space of Generally, 131 c.cthe computer. assessments, In the allocated space I found four detainee and in the unallocated space I found zero. REDIRECT EXAMINATION Questions by Assistant Trial Counsel 1: The cables in the files.zip folder were not released. OBJECTION The defense counsel objected to the line of questioning stating it was cause for speculation. The Investigating Officer overruled the defense's objection. The redirect examination by the trial counsel continued as follows: When the files.zip was created there was something wrong, there was a problem with it, if a person using WinZip tried to open it, it would not open because it was a corrupted file. So you would need special tools in order to open the files in that tip folder. OBJECTION The defense counsel objected stating the trial counsel was asking leading questions. The Investigating Officer sustained the objection. The redirect examination by the trial counsel continued as follows: I did find files related to the Farah investigation in the unallocated space. I found four detainee assessments in the allocated space. I did find evidence of the detainee assessments in the index.dat file folder. The detainees have a unique naming system, the I looked for the pattern fur that and there were hundreds of those in the index.dat. The index.dat file is a Microsoft file used to log all of the websites and files viewed by the user. RECROSS-EXBMINATION 132 moonimtnemmrQuestions by the civilian defense counsel: I was not able to open the form of file on unallocated space. I testified that the files.zip folder was corrupted I was not able to tell when it was corrupted. The Investigating Officer closed the courtroom. [The Article 32 hearing recessed at 1012, 19 December 2011.] [The Article 32 hearing was called to order at 1016, 19 December 2011.] The Investigating Officer opened the courtroom. SPECIAL AGENT DAVID SHAVER, Civilian, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by assistant trial counsel 1: An IP address is an Internet protocol address. It is a unique set of numbers that is assigned to a computer so that it can talk on the network. The [dot] .40 machine was the machine that PFC Manning?s user profile was on. That was his secondary computer. I verified the acquisition and verification hashes, the hashes matched. Then I scanned it with antivirus, then I conducted my examination._ The configuration of this computer was that it was a classified computer, a Windows operating system on the Army domain. It has CD burning tools, it had Roxie that was installed on the computer. Roxie is CD burning software. Roxio was on the other computer, the [dot] .22 computer that also had PFC Manning's user profile on it. USB ports were disabled for storage, it is an Army policy. On both computers the USB ports were disabled. When you burn a disk using Roxio, the CD has to be named and it was named by date. This image is an artifact, the naming of a CD that I burned when I re?created, I turned the [dot] .22 computer into a virtual machine. A virtual machine is a bit by bit image of a computer, it converts it to a running computer within your computer which acts as a host, so it is running virtually in the memory of the host computer. I wanted to verify that a CD could be burned from this computer and so I EB turned it into a virtual machine, burned a disc. logged on as a user and then I My investigative plan for the[dot] .40 computer was the same thing as the [dot] .22, to see if there were any Department of State cables, see if there were any Guantanamo Bay detainee assessments on there. I approached it the same way. In the unallocated space I located a deleted CSV file containing over 100,000 complete Department of State cables, which had been converted to Base 64 format. A CSV is a Comma Separated Value; it is just a way of transferring data from one database to another area. The utility of a CSV is a common format, and between each field there is a comma. Base 64 is just a way of encoding information, the benefit for it in this case would be to remove all of the characters, all of the grammatical characters. When something is base 64 encoded it looks like, to the untrained eye, gibberish. I found more than 100,000 full cables. The image is a very small portion of the recovered CSV and what I've done for this one is, to keep it presentable in open court; I filtered it on some of the unclassified Department of State cables. On the left, the first field would be the numbers, the person who was doing this wanted to ensure that he obtained all of them, so each one of them had a unique number. The second field is the date of when it was published, when the actual cable itself was published on the Department of State server, this is the Message Record Number, MRN. A message record number is how the Department of State labels their cables. And to the right of that is the base 64 stuff that I spoke of. There is a reverse process to decode base 64. It presents the information in plain text. And I was able to decode these cables. file, I found this deleted CSV in unallocated space, but I could not associate that with a user profile. You can decode manually One at a time, but that would be very time-consuming and prone to errors. Through scripting you can create an automated process to decode for you in a very quick manner. I did not find a script to decode it on this computer. I did not find any other data sets on the [dot] .40 computer. I do recognize that image, which is the warning banner for the computers, [dot] .22 and the [dot] .40 computers. When you first start the computer and try to log on, you are presented with this warning banner. The first sentence states, "You are accessing a US government (USG) information system that is 134 mummemMI?l provided for US government authorized use only." When a user first logs on to the computers that I examined, you?re first prompted with this warning screen and then you have to press okay. CROSS-EXAMINATION Questions by the civilian defense counsel: The CSV file that I just discussed was in unallocated space, so I cannot say that it was PFC Manning that accessed this information. I do not know whether usernames and passwords were shared at the on FOB Hammer. The unallocated space with the cables cannot be date and time stamped. I found this information on a classified computer; there is nothing wrong with this information being on a classified computer. I did not find any forensic evidence that this information was sent to anyone. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] SPECIALIST ERIC BAKER, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I'm assigned to the 62nd MP Detachment at Ft. Drum, New York. Currently I am an investigator on the drug suppression team; I am a military police officer, 31B. I have been the Army for 3 years and 11 months; I have been an MP the whole time. I know PFC Manning because he was my roommate in Iraq, and he was in my unit, HHC, 2nd Brigade, 10th Mountain. I first met PFC Manning October 2008 before deployment. Yes, we went on both of the JRTC rotations together. I think one was in October and then I don't know when the other one was. The first JRTC rotation was October 2008; we were training for Afghanistan, and then the second one we were training for was Iraq. We didn't have too much interaction at all during the deployment; we were just roommates. I noticed that PFC Manning would use the computer quite often, basically any chance that he could get he would be on the computer, I never noticed what was on his screen. I do not remember exactly when PFC Manning went 135 on his mid?tour leave but I do know that it was two weeks before I took mid?tour leave which I took at the end of January. My mid-tour leave lasted from the end of January until the beginning of March. He was alone in our CHU for most of February. PFC Manning had a MacBook Pro, a microphone, an external hard drive, and a Ipod Touch. I had a laptop and an external hard drive for my movies. I never used his computer; he had his iPod touch, and some of the CDs which were out of the plastic wrap, and I?m not sure what type of CDs they were. I did not have any rewritable CDs inside of our CHU, I never brought CDs that were marked secret into our trailer, I never marked anything secret inside of our trailer. OBJECTION The defense counsel objected to the line of questioning stating relevance. Assistant Trial Counsel 2 stated it goes to the accused's state of mind. The Investigating Officer overruled the objection. The direct examination by Assistant Trial Counsel 2 continued as follows: I didn't know too much about his feelings in the military, but I do know that he planned on getting out of the military. I remember him mentioning that the military was not for him. CROSS-EXBMINATION Questions by the civilian defense counsel: Since I was the last lower enlisted to get FOB Hammer, the First Sergeant told me that was the only room available for me. Even though PFC Manning and I were roommates we were not friends, we hardly ever talked. One of the first things that PFC Manning spoke about gave me the impression that he was gay, and after that I told him it would probably be better if we just didn't talk to each other. When PFC Manning was not at work he was in the room on his computer, the only people that I seen him associate with were the ones that he worked with and that was only during chow time. I do have a laptop and an external hard drive, I did not have any CDs I could have if I wanted to but I chose not. I went on mid?tour at the end of January, and it 136 came back the beginning of March. I do not know exactly when he came back. PFC Manning made the statement to me that he did not think the Army was for him, when he made that statement I did not think that he said it because he was gay. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] MARK JOHNSON, Civilian, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1: I work for Army Computer Crimes Investigative Unit; I began working for them in June 2006. I am not a special agent for CCIU, I am a contractor, and I work for Man tech International. I am a computer forensic examiner, I'm assigned to the digital forensics and research branch, my supervisor is Special Agent David Shaver. Before working for them I worked for a different defense contractor, in information assurance and network operations. I have been through the defense cyber crimes curriculum that includes a number of courses; I'm certified as a digital media collector, the forensic examiner, and the computer crimes investigator. The Defense Cyber Crimes Center is also known as DC3. I am a certified information systems security professional, also known as CISSP. I examined a forensic image obtained from PFC Manning's personal laptop computer; it was an Apple Mac Book Pro. After I received the forensic image we validated the MD5 hash that was included within that to verify that it had not been changed and that it was the correct image. I verified that image. The normal procedure for me after that would be to run an antivirus scan to ensure that there was nothing on it that didn?t belong there. Once we completed that then we will begin our examinations depending upon what we are looking for. In this case we were looking for two specific things, we were looking for evidence of Internet chats. We were also looking for classified information or US government information. The first thing that I did since I knew that I was looking for Internet chats I looked for the presence of instant messaging programs on his computer, and I found the installation of Adium, it is a chat program designed for the Mac is a multi? protocol Internet chat program that works with a number of 13? 00809 different applications. Multiprotocol means that it works with different networks, so you can sign in on Adium and chat under any number of instant messenger usernames. We would be able to see the profile for Private Manning if he had it configured and if it was configured if any logs were associated with the account. We found chats, chat logs in question here were with Mr. Adrian Lamo. I do recognize that image this is a screenshot of the chat logs that we recovered from PFC Manning?s machine. This chat is between PFC Manning and Adrian Lamo. The defense counsel requested a brief conference. The Investigating Officer granted the defense counsel's request. [The Article 32 hearing was recessed to order at 1046, 19 December 2011.] [The Article 32 hearing was called to order at 1343, 19 December 2011.] The Investigating Officer called the hearing to order. MARK JOHNSON, Civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1: The username of the two personnel in the chat logs as I can recall was bradass87 referring to Bradley Manning, and Adrian for Adrian Lamo. OBJECTION The defense counsel objected to the line of questioning stating the witness was making an assumption as to who the username belonged to. The Investigating Officer sustained the objection. The direct examination by Assistant Trial Counsel 1 continued as follows: The content was of various topics, WikiLeaks, government information, as well as topics related to general interest. I 138 also found a buddy list, Adrian was listed in there, and we also found one named Press Association. The alias that is associated with Press Association at the time was Julian Assange. I do recognize that image, it is a screenshot of the buddy list in the XML file for Adium. this refers to the account Manning was using on his computer to communicate. The Press Association is the recipient or the name in the buddy list and the alias is the name that was associated with that it, that nickname if you will. This was in the allocated space. In the un-allocated space we found the alias Nathaniel Frank which is also associated with Press Association. Once we found that we looked for other references to the press Association account on his computer in conjunction with Nathaniel Frank. We found a large collection of further Adium logs in unallocated space with that combination. These were chat logs between Bradley Manning and Press Association with the alias Nathaniel Frank. Adium stores its logs in XML format and the version in the unallocated space was in that format. The substance of the chat was predominantly discussions of government information and specifically receiving or sending the information. And these chats were found in unallocated space, there was a date associated with these chats but I do not recall. This is a screenshot of a cleaned up version of the logs that were in unallocated space, without cleaning it up you are able to read but it would be hard to understand. What you see here is the spreadsheet version of the chat logs, the headings have been bolded for readability. We were able to extract between 14 and 16 pages of chat logs. I read the chats, and the people in the chats seemed to be familiar with each other. In the chats they did discuss WikiLeaks, and various other things that I do not recall at this time. I did find evidence of connections between other computers, in both the chats with Nathaniel Frank and the previous ones we had noticed the conversation about SFTP, it is a function of the SSH communication protocol used for transferring files, it stands for secure file transfer protocol. SSH is a way of communicating with a remote computer using an communication point. When we did this we found in the Bradley Manning home folder, the known host file SSH in his home profile. This is a screenshot of that known host file obtained from Bradley Manning's computer. That is an IP address on the 139 00811 top left, that particular address resolves to the ownership of PRQ, our investigation revealed that it is an ISP based in Sweden which is known to be affiliated with WikiLeaks. The second IP address resolves back to Verizon communications and through our investigation we traced it back to Bradley Manning's aunt. Once we found those IP addresses we looked for other references to those addresses, we did find some in unallocated Space which referenced back to the collateral murder video. Thunderbird is a client e~mail program for various operating systems to include OS X. An e~mail cache keeps a copy of local e-mail from your online account; PFC Manning's online account was a Gmail account. We looked through his e?mail cache and found a number of PGP e-mails, PGP stands for, "Pretty good privacy," it provides eemail messages. There are affiliated versions such as GPG and open GP. I believe GPG is Gnu Privacy Group. PFC Manning sent Eric Schmiedl an message using GPG. I found one message between PFC Manning and Eric Schmiedl. There were also messages between PFC Manning and Eric Schmiedl. The message was a failed act by PFC Manning to enable the In order to read a message I needed to have and obtain PFC Manning?s private key and also the password to unlock the private key. With that I was able to do read the email. The password was the same as his PGP, as well as the 08 ten. He has his computer set to automatically log himself on so because of that I was able to access his information through forensics. His password was When I typed it in I was able to receive the output text. Macbook Pro had a way to insert CDs, we found that a number of CDs have been burned and erased over time. This is a screenshot of the disk utility log maintained by the Mac GB system it shows where a CD rewritable media had been burned and where it had been erased. I cannot tell what kind of files were on the CDs. During the investigation a CD had been found in PFC Manning?s housing unit that contained a file name, "The engagement zone," we looked for that same string on his hard drive and we found that name in conjunction with the string, it was a CD that was marked secret. In 08X, in order to attach a disc of any kind to the system it has to have a mounting point. Mac uses this last volume as that mount point name, think of it as a starting point of the directory. We wanted to see what other discs may have been attached to this computer at some point so we looked for the string, "Volumes," and we found evidence of this. This is a screenshot of the unallocated space of what I just explained; in the next section would be the disc um 00812 name and the file. The last part is the file name. We found a list of disks and also a list of files that were attached at the time. This is a screenshot of an output of some of the volumes that we found in unallocated space that references that string. All these have to have a name of some sort in the Mac OS, the next thing after that would be your disk name. If a user had not specified a disk name that would be the exact same way that Roxio would do it. The date of the first disc would be February 15, 2010. Then following the disk name you would have path and file name for whatever was on a particular optical media. The disc names were found to be a match to the same discs that were burned on the SIPR computers. The last volumes record in this screenshot is files.zip. That was burned May 4, 2010. This was found in the unallocated space, which means that it was deleted. The allocated and unallocated space on the Mac is similar to that on windows. We exported out the unallocated space and we examined it in a forensic tool to attempt to identify files that may have existed in that space at one point. HTML is the language of the web, the webpage if you will. These HTML files were of web pages obtained for the Net Centric Diplomacy website, otherwise known as the Department of State cables. I recognize this image; this is an unclassified cable that we obtained from Private Manning?s laptop in unallocated space. We have various terms down here that would be consistent with the cable; we have an Embassy name in part of the MRN number. This particular cable is unclassified but we did find numerous references for other cables from unclassified through secret. I searched further for MRNs on this computer: we identified approximately 16,000 unique MEN numbers in unallocated space on the computer. We found CSV files in the unallocated space. I found a script, which is a miniature program designed in this particular case to process input files to output files. It appeared to be a PHP formatted script, PHP is a scripting language more commonly used on web servers but it can also be used on a standalone computer. I recognize this image, it is a screenshot of a script that we found in unallocated space, in this particular case it is designed to take an input file and output a comma separated value file. In this case HTML formatted files and the output would be comma separated values. Once we found this script we exported out this script and then we put it into an environment so we could execute it in the same environment that PVT Manning would have. We were able to boot his hard drive using our investigative Mac, an alternate boot if you will. We ran the script and it outputted the CSV file as expected when provided with an input file of cables provided by 141 Special Agent Shaver. on the SIPRNET. The input came from the classified cables I recognize this image, that is a screenshot that we obtained during the execution of this script. For each line, every time it processes a cable it outputs sort of a status line to the console screen. We found web pages in the unallocated space referencing the WikiLeaks upload page. We found what appears to be status or progress excerpts, this is a collection of URLs on the WikiLeaks upload webpage with an upload identifier. I recognize this image, this is the progress screen, it is all in unallocated space as you can clearly see the URL being used. We found additional references to the same progress for the remaining parts. This image is a screenshot of the files that we were able to find in unallocated space on a status screen. This is a cleaned up copy, and information on the left is like I just described it. A rar archive file format is designed to take multiple input files and consolidate them into a single archive, and it can also compress them, it is very similar to zip format which is more commonly seen. The extension at the end, NC is commonly used with the program. is a program designed to data. This image is a screenshot taken from the allocated space, which indicated the command used to execute the program. AES stands for advanced standard, it is a highly secure algorithm developed by an open competition on the net. I found other references to the rar archive on the computer, we found references to it in conjunction with unallocated space, but it is a path pointing to Private Manning's desktop. We extracted the UC from everything else using a tool called steg carver, which is a tool to examine a file or component of other files. It is designed to find files within other files. Using this tool we found remnants of a rar archive, it was corrupted and in unallocated space, which is not uncommon, but by executing the repair function within the winrar program we were able to recover it enough to open the contents. It appeared to be some discussions of a military nature, a briefing, it was clearly marked classified. We also found these pictures on the SIPR computer. We found a text based file in unallocated space, a string, it appeared to be a tasker, something they wanted to obtain was a global address list for Iraq. The image is the tester that I just described. I found other evidence of the global address list on PFC Manning?s computer; I found a number of exchange formatted e?mail addresses in the unallocated space as well, thousands of them. We found several items that were on the 142 WikiLeaks website that were also on PFC Manning?s personal computer in the unallocated space of his computer. There was evidence that his computer had been wiped or erased, first the machine had been wiped in January 2010r during that time the operating system had been reinstalled. We found references to a disk utility log that indicated that the unallocated space had been erased in later January, but it had not been completed. What that means is that everything on the computer had been erased and written over before 25 January 2010, and the unallocated space had been erased and written over on 31 January 2010. The witness authenticated the following documents: 00409680 00409681 00409682 00409683 CROSS-EXAMIHATION Questions by the assistant defense counsel: I am certified in computer forensics through 0C3. My work generally is with Windows?based products; prior to this case I have never done computer forensics on an Apple computer. PFC Manning?s personal computer did not require a check card login, it was set to automatically log on, and it is possible that anyone could have had access to his computer. I only examined his personal laptop; I did not discover any evidence that the global address list was released. During my work I do take notesr that is my customary practice. I did the work at Fort Belvoirr Virginia. I don?t recall who specifically assigned me to this case but my supervisor is Special Agent Shaver. OBJECTION Assistant Trial Counsel 1 objected to the line of questioning stating basis. The defense counsel stated that there was a basis due to the witness?s extensive work that he has done on this case. The Investigating Officer sustained the objection. 143 The cross-examination by the assistant defense counsel continued as follows: I may have come across references in allocated space to web pages, and things of that nature about PFC Manning?s gender identity disorder but we were not looking for that information. My understanding is that PFC Manning had an alter ego by the name of Breanne Manning. As to the chat logs I mentioned user profiles but I do not know who was doing the actual Chatting. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] SPECIAL AGENT DAVID SHAVER, Civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXHMINATION Questions by the Assistant Trial Counsel 1: I am familiar with the SD card that was found in PFC Manning's aunt's house, I did an examination of that media. investigative plan for that media was the same as before; however, I did the image of this one andcreated a forensic bit by bit image, again I verified that the hash values matched the acquisition, I worked off that image file. In the unallocated space deleted space, I recovered over 100,000 CIDNE document reports concerning both Iraq and Afghanistan. I found some deleted photos and movies of PFC Manning. In the allocated space on the card, there was only one file in the allocated space I believe that it was called, ?Yada.tar.bz2.nc." I was able to the file, it contained four files, two CSV files, one containing the CIDNE database reports for Afghanistan about 91,000 individual reports, the next CSV was all of the CIDNE Iraq reports, approximately 400,000, a temporary file, and a readme.txt. I the file using the password that Mark Johnson had identified from examination of PFC Manning's personal computer, the password was, ?Twinkl492ll.? I simply took the program and told it to the file using that password. These are screenshots of everything that I just explained to you. The I had the opportunity to compare the reports from the CSV files that I found to the reports posted by WikiLeaks. Although I didn?t do a line by line comparison, it appears that these were the source files that were released. The ones that were 144 GUI-H.101 00816 released were less Iraq ones, a few thousand less, and there was only 75,000 released from the Afghanistan theater. The witness authenticated the following documents: 00376856 00409685 00409684 00409686 00409718 The defense counsel stated that they were missing the document ending in 9684. The trial counsel stated that they would be able to get the document to them and that the defense has been in possession of them for over a month. Questions by the assistant defense counsel: I believe that we got the search authorization to search the SD card December last year. I do not know how it got to his aunt?s house; I obtained it in the 0.8. I do not know who handled this SD card between the time of PFC Manning?s arrest and the date that I obtained it. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.1 MARK JOHNSON, Civilian, was recalled as a witness for the prosecution, reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION Questions by the assistant trial counsel: I examined other pieces of media related to this case, a forensic image of an external hard drive obtained from Private Manning. I think it was found in his CHU. On the external hard drive I found some information of a F000 nature and a text file. There was also a text file that was found on the drive as well, it appeared to be contact information. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] 145 mummemMI[The Article 32 hearing was recessed at 1446, 19 December 2011.] [The Article 32 hearing was called to order at 1510, 19 December 2011.] The Investigating Officer called the hearing to order. SPECIAL AGENT DAVID SHAVER, Civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1; I am familiar with Centaur, it is a net flow log. A net flow log is a part of the intrusion defense system, it captures IP addresses, times and dates. It captures connections between two different computers. There is a sensor somewhere on the network to capture the traffic, it just captures data, log files. It will tell you how much data transferred between the sensors. I examined a Centaur log in this case, we collected Centaur logs for the time period of [dot] .22 and [dot] [dot] .40, and those are the IP addresses for PFC Manning's SIPRNET computers. OBJECTION The defense counsel objected to the witness?s testimony that the [dot] .22 and the [dot] .40 were PFC Manning?s computers. The Investigating Officer sustained the objection. The direct examination by the Assistant Trial Counsel 1 continued as follows: The [dot] .22 and the [dot] .40 were SIPRNET computers that were located in the SCIF where PFC Manning worked, and other users could log on to those computers. My investigative plan for the log files were since it was net flow data I would see which computers and how many times and how much data was transferred between the [dot] .22 and [dot] .40 and other government computers. I sorted the excel spreadsheet from the highest transfer data at the top and working its way down. From the logs that I created it I have the top 15 listed on this Excel spreadsheet. 146 I was the forensic examiner responsible for examining the Department of State logs; I collected two sets of logs. The first set was a set of fire wall logs, and the second set was a set of Web server logs. A fire wall is a device which allows or disallows network traffic. The log files were collected based on an IP address, [dot] .22. The information that was captured in the Department of State fire wall logs was only connections there wasn't data transferred. I can just tell you that there was communication between [dot] .22 and the net centric server. The log files demonstrated a sort of pattern, I don?t remember the dates but some days there was a large amount of traffic and other days there was not that much traffic. I cannot determine how long the connections were for: I can just say that it was a lot of connections. I counted that there was somewhere around 800,00 connections between the [dot] .22, the [dot] .40, and the Department of State fire wall log, from approximately 7 March until 3 May. There were some logs that were collected from the Department of State logs as well. A large number of files were downloaded to [dot] .22 using the WGET program, the timeframe was from 3 to 4 May. There were not any server logs before May, because there was a problem with the server and there was no logging. I examined CENTCOM logs in this case: the CENTCOM server in Florida had hosted the Farah Afghanistan incident, the investigation. Because of the examination of the index.dat within PFC Manning's user profile on [dot] .22, there was a path to a very specific folder structure throughout the SJA folder, Investigations. So we were authorized to image those files that were contained within that path, just the files in question, the Farah investigation folder, underneath the SJA staff section. Index.dat is a windows feature, a log file that captures URL or file viewed within the user profile. I looked at that image, it contained files and folders of a unique structure that were similar to the files that were found on the CENTCOM server, Farah investigation folder, they were found in the index.dat folder on PFC Manning's user profile. The examination of log files, the CENTCOM log files are a little bit different, because they were set to capture internal not external IP's. It was collecting the dates and times of files requested and the files that were requested to be downloaded. I did an examination of the log files and determined that with one of the files, a power point presentation, it was identified in the index.dat of PFC Manning's user profile on [dot] .22. That file was only downloaded one time from the CENTCOM server, on 10 the 147 mummewMH April 2010. On 10 April 2010, I saw hundreds of other files being downloaded at the same time. I examined the log files collected from the CIA, the websites that were associated with these logs files were the open source center and CIA wire. Open source center is reporting on open source media, TV, documents. CIA wire is their world intelligence review, their reports on various matters, various topics. PFC Manning had an open source center account, the username for that account was, ?bradass87," the audit logs captured the IP requesting the information, the username requesting the information, the date, the time, and the files viewed and files searched for. These were linked to a SIPRNET email account. PFC Manning searched for keywords like Iceland and WikiLeaks, about 30 times for each. Questions by the assistant defense counsel: Regarding the Centaur logs, they covered the time period approximately 1 October 2009 through the end of May 2010. For me to get information from the Centaur legs I would have to request it. We did not look at all of the computers in the T- SCIF, we just filtered on the [dot] .22 and the [dot] .40 IP addresses. The two workstations were accessing this information and these workstations are classified workstations, and the activity that was on those workstations were authorized, the same with the Department of State logs. The Farah folder I found three videos inside. I have served previously in the military; Iraq is within the area of operations of CENTCOM. The [dot] .22 and the [dot] .40 workstations are classified workstations, and an all source analyst could have to access this to complete their job. It was okay for an Intel analyst to look on these servers: they had authorization to look into this data. REDIRECT EXAMINATION Questions by the Assistant Trial Counsel 1: Oh the [dot] had a user account. enter a password. .22 and the [dot] .40 computers, PFC Manning In order to use that computer you had to 148 to?Jmmwat-e 00820 Questions by the assistant defense counsel: More than one person was assigned to thoSe computers. [The Article 32 hearing was closed at 1537, 19 December 2011.] 19 December [The Article 32 hearing was opened at 1605, 2011.] The Investigating Officer opened the hearing, and the trial counsel stated that this portion of the hearing is unclassified. SPECIAL AGENT DAVID SHAVER, Civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1: I examined NIPRNET computers, which is the unclassified network; it was a U.S. Army computer that was in the SCIF the IP address ending in .139. This computer also required a username and password to logon. I used the same process to examine this computer as 1 did the other computers. I wanted to see what keyword searches were done on this computer and if any classified information was on this computer, I searched the entire computer. Under PFC Manning?s user profile I didn?t find any classified material, but he did searches for WikiLeaks and also for and Base 64. These were Google searches on 3 May 2010: PFC Manning searched for WGET and downloaded the file to his profile. WGET was transferred from the NIPRNET to the SIPRNET on 4 May 2010, under PFC Manning's user profile. CROSS-EXKMINATION Questions by the assistant defense counsel: Regarding the WGET program, it is used to gather data, it is a data mining tool. OBJECTION Assistant Trial Counsel 1 objected to the line of questioning stating that the witness has no basis for knowing what Intel do. 149 w-w m-m m-m 00821 The Investigating Officer sustained the objection. The defense counsel requested to revisit a line of questioning with the witness. The cross'examination by the defense counsel continued as follows: The activity pertains to the Farah folder, containing three videos. This happened in April 2010, there is no evidence that this activity took place prior to this date. I was aware that WikiLeaks claimed to have possession of those videos in January 2010. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] [The Article 19 December 2011.] 32 hearing was recessed at 1613, [The Article December 2011.] 32 hearing was called to order at 0934, 20 All parties present prior to the recess were again present in the hearing. JIRLEAH SHOWMAN, Civilian, was called as a telephonic witness for the government, was sworn and testified in substance as follows: DIRECT EXAMINATION Questions by the assistant trial counsel: I am Jirleah Showman of Syracuse, New York. I left the Army in the rank of Specialist on 25 June 2011 after serving 4 years and 2 months. I was in the same unit and intelligence shop with PFC Manning. I was also his team leader. I first met the accused when I arrived in the unit in March 2009. We were both 35F MOS. I attended HIT at Fort Huachuca, Arizona in July 2007. I was trained as an all source analyst on how to handle, disseminate and destroy classified information. I also received training on all of the computer systems we use to gather intelligence. You need at least an interim SECRET clearance in order to initiate training. I attended some training with the accused at the Division Headquarters prior to JRTC. We both rm 00822 attended the JRTC rotation for Iraq. I deployed with the accused to Iraq in October 2009 where we both worked in the Brigade TSCIF on FOB Hammer. I worked directly with the accused for the first two months as NCDIC of the night shift. The accused was a Shia analyst. He would gather intelligence information for products and projects that would be placed on the Brigade shared drive for use by the Brigade Commander. We used DCGS as a tool to do our job but we also used CPOF strictly to communicate with the Battalions and the Companies. I don?t know what WGET is. I never used that to do my job. The accused always had computer issues on a weekly or bi-weekly basis. The DCGS contractor would have to correct his system before it crashed. The accused left the Brigade SCIF on 9 May 2011, the morning after he assaulted me. He was removed for punching me in the face and displayed uncontrollable and untrustworthy behavior. I worked with the accused in a supervisory capacity during the first few weeks of the deployment. The trial counsel announced the defense requested a closed unclassified session. The government requested a closure determination hearing. The Investigating Officer closed the hearing. 20 December [The Article 32 hearing recessed at 0947, 2011.] [The Article 32 hearing was called to order at 0952, 20 December 2011.] The Investigating Officer announced this was an unclassified closed session; and the parties present were counsel for both sides, hearing security officer, the accused, personnel detailed to the defense and prosecution teams, representative of relevant government agencies, and the Investigating Officer?s Legal Advisor and support staff. The Investigating Officer announced the defense requested a closed session to discuss disloyal statements made by the accused to the witness that would be prejudicial if heard in an open forum, which was denied. The Investigating Officer announced he would reconsider the denial. 151 00823 Both parties maintained the previous positions submitted to the Investigating Officer for consideration. The Investigating Officer placed his findings on the record reversing the denial of the defense request to close the hearing citing the accused?s right to a fair trial was an overriding interest. JIRLEAH SHOWMAN, Civilian, was recalled as a telephonic witness for the government, was reminded of her previous oath, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I discussed PFC Manning?s opinion about the military with him. He told me he joined to earn money for college and to get computer knowledge and training. When he was asked what the U.S. flag meant to him he said it did not mean anything to him and he held no allegiance to this country or its people. CROSS-EXAMINATION Questions by the defense counsel: That conversation took place during a verbal counseling session between me and PFC Manning. It was during a counseling session; his behavior initially indicated that he didn?t care what I was saying; I wouldn't say that he was happy about being counseled. He was rarely happy, and I do not know if his mood changed during the counseling session. PFC Manning showed a lack of respect towards anything that occurred. I do agree that at the time I was counseling him he was not happy. I was trying to see where he was coming from, so I asked him why he joined the Army, and that is when he reSponded to the flag meant nothing to him and he no allegiance to the United States. upset when he said that, I raised my voice, but I do not remember exactly what I said. I believe I said that he had no business joining the military. I don't know PFC Manning's intentions for anything he said. I am not sure if he was saying to push my buttons. Regardless it was something that he knew not to say. That is not a joking matter for an Intel analyst. I told Master Sergeant Adkins that I did not trust PFC Manning and he should not deploy with us. I was not aware that Master Sergeant Adkins denied hearing it from me. It does surprise me that he denied me telling him that. I was 152 Myer?n woodmme mutabJMI??CD EXAMINATION BY THE INVESTIGATING OFFICER Questions by the Investigating Officer: This conversation took place following the JRTC rotation within months of us deploying. [The Article 32 hearing recessed at 1004, 20 December 2011.] [The Article 32 hearing was called to order at 1013, 20 December 2011.] The Investigating Officer opened the hearing, and stated that the closed session determination will be put on the record. JIRLEAH SHOWMAN, Civilian, was recalled as a witness for the prosecution, was reminded of her previous oath, and testified in substance as follows: CROSS-EXAMINATION Questions by the civilian defense counsel: I supervised PFC Manning before deploying: I became his supervisor in March 2009. I had daily contact with PFC Manning. There was an incident in where he did not show up for PT. I went to his room to find out where he was. When I got there he appeared to have just woken up; he was still in civilian clothes. I told him to get dressed and to get downstairs right away. He walked from his barracks room to formation. PFC Manning did not respond to anything that I was telling him. I asked him why he was not in formation. I do not remember him responding to anything that I was telling him. I had to counsel him and require him to show up early to formations for corrective training. PFC Manning screamed and started jumping up and down, flapping his arms. He was extremely loud, swinging his hands around. His body language was very aggressive. I stepped back from him. His screaming lasted several seconds. Master Sergeant Adkins approached PFC Manning and then he quieted down. PFC Manning was frustrated. Master Sergeant Adkins asked PFC Manning what the problem was, and PFC Manning reaponded that he was frustrated. PFC Manning said that he did not like to mess up, I counseled him after that incident. I also recommended UCMJ action, because he disrespected Master Sergeant Adkins and me. He lost his military bearing. Master 153 Sergeant Adkins recommended UCMJ but he did not follow up on those. I required PFC Manning to go to behavioral health. To my knowledge, no one in the chain of command alerted the Commander of the incident. I recommended to Master Sergeant Adkins that further action was needed and PFC Manning was a threat and he should not be handling classified information and should not deploy. Following that incident. OBJECTION The trial counsel objected to the line of questioning stating lack of foundation. The civilian defense counsel replied that the purpose of an Article 32 hearing is discovery for the defense. The Investigating Officer informed the civilian defense counsel to limit his line of questioning. The cross-examination by the civilian defense counsel continued as follows: I do not know if Master Sergeant Adkins informed the Commander. I believe PFC Manning was unstable as one of the reasons why he should not deploy. I saw PFC Manning freeze when he was asked a question by the Lieutenant. He was nonresponsive. I asked him what was wrong and he didn?t speak. I felt he was not processing what I had said. I told Master Sergeant Adkins what happened. We both asked PFC Manning what was going on. PFC Manning said he felt paranoid and people were listening to his conversations. He did not trust anyone in the unit or around him. He said he was not suicidal and did not want to hurt himself. I asked him if he heard voices he said no. I was trying to determine if he had. I am not a medic, I was trying to see if he had issues. He had an elevated level of paranoia. but PFC Manning was not functioning in the office. He was not able to do simple tasks. I confronted him about not getting work done. He used the excuse for being tasked for a cleanup detail. He showed no indication of gender identity disorder. Based on all of this I recommended to Master Sergeant Adkins that PFC Manning not deploy or have access to classified information. Master Sergeant Adkins told me he Spoke to someone but I do not know if it was the commander. I told Master 154 Sergeant Adkins that PFC Manning should be command directed to behavioral but it did not happen. I was not happy when PFC Manning?s name was on the list to deploy. I talked to Master Sergeant Adkins again and was told the decision was made and I had to deal with it. We deployed to Iraq on 11 October 2009. I was the night shift NCOIC of the I had PFC Manning and PFC Cooley under me. Master Sergeant Adkins decided who would be on dayshift, but I could be wrong. Master Sergeant Adkins was the overall NCOIC. He decided who would be on the We did not have much say over the Soldiers we were in charge of. Everything went through Master Sergeant Adkins. Master Sergeant Adkins oversaw all equipment and Soldiers. Soldiers were not being counseled as they should have been. Major Clausen was the Brigade 82. He was not in the SCIF and was in his office. CW2 Hack did not have the authority to counsel me. I was counseled by Master Sergeant Adkins. I was counseled once during the entire deployment. I witnessed the incident between PFC Manning and SPC Padgett. It happened towards the end of December. I heard PFC Manning screaming. I walked to the door to see what was going on. I saw PFC Manning on one side of the table and SPC Padgett on the other. I saw PFC Manning flip the table. The computer hit the ground. I found out later that it was broken. I saw PFC Manning approach SPC Padgett, and he was trying to talk PFC Manning down. PFC Manning looked around the roomJr he was about to reach for an M4 rifle. CW2 Ehresman grabbed PFC Manning from behind and locked his arms up. PFC Manning was in the full nelson position. There was no formal punishment to my knowledge; I don?t know why. I told Master Sergeant Adkins about the incident and told Master Sergeant Adkins that PFC Manning had no business in the SCIF. I know what the DEROG process is. We have a responsibility to report DEROG information. When PFC Manning?s clearance was suspended I helped the Commander file the paperwork. To initiate a DEROG the Commander will indicate what the action was that lead to the DEROG, make a recommendation, and check a box if the individual clearance should be suspended or terminated. I felt they tried to keep everything that happened within the S2 internal. The incident between PFC Manning and SPC Padgett should not have remained in house. The 18G found out about the incident from CW2 Hack. PFC Manning and I had to go see 138. After seeing a short time later in the deployment I saw PFC 155 Homm?d?mwat??DLO DJ Manning rolled up in a ball. I reported it to CW2 Ehresman. I told him to be ready for something to happen. I left the TSCIF at the end of my shift. I was called back there around midnight. I was assaulted by PFC Manning. I stood up and pinned him to the ground after he hit me. PFC Manning told me he was scared of what behavioral health would find out and that he would be removed from the Army. I found what later became known as the Collateral Herder video. I was going through some folders that belonged to the fires section working for CW2 Hack. I came across the video while I was training to improve professional development. Chief and I watched the video and he would go over how his section responded. Chief was grooming me to be a target analyst for future deployments. There were other people that watched it with us. They were discussing what we were seeing in the video. There was no Rules of Engagement discussion that I recall. REDIRECT EXAMINATION Questions by Assistant Trial Counsel 2: PFC Manning helped me put MIRC Chat on my computer. He had the most knowledge of computers. I used it to talk to fellow targeting sections. PFC Manning never told me he was chatting with Julian Assange. We were never allowed to take classified information outside of the SCIF. We all signed Nondisclosure Agreements. RECROSS-EXAMINATION Questions by the civilian defense counsel: I don't remember what regulation was behind the NBA. [The witness was permanently excused, duly warned, and ended the phone call.] [The Article 32 hearing was recessed at 1055, 20 December 2011.] [The Article 32 hearing was called to order at 1113r 20 December 2011.] All parties present prior to the recess were once again present. 156 00828 STAFF SERGEANT PETER BIGELOW, U.S- Army, was called telephonically as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 2: I am currently assigned to AFSOUTH Battalion Naples Italy, Army Element of NATO. I knew the PFC Manning in Iraq. He worked for me after fight with Showman in the SCIF. I was the HHC Brigade Supply Sergeant. He worked for me until May and he was taken into custody. He came to work for me maybe in April. I can?t honestly tell you, but I know it was after the altercation. I had a SIPR and NIPR computer in the supply room and my personal laptop so I could search websites where the Army blocked. My personal computer was used to help me do my job. I did not log into PFC Manning?s accounts, to include his AKO, his gmail, and his Amazon account. I did not know any of his passwords. I did not search for or View the WikiLeaks.org website. I did not search for Julian Assange on the supply room computer. I have not googled the Global Address List on the sopply roOm computer. I never downloaded emails on the Iraq.centcom.mil domain. I only emailed the theatre PBO on the NIPR computer. CROSS-EXAMINATION Questions by the civilian defense counsel: My personal laptop was not password protected. I gave instructions to check personal email on my laptop, but do not download crazy or unauthorized sites on my laptop that could get me in trouble. I never gave access to other Soldiers. My clerk had access, but she had her own NIPR access. She went to her room and used her personal computer. I don?t know if she used it when I was not there. [The witness was permanently excused, duly warned, and ended the phone call.] SPECIAL AGENT ALFRED WILLIAMSON, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION 157 mummthI?i Questions by the assistant trial counsel: I have been working for Army CCIU since September 2006. I am a Digital Forensic Examiner; Special Agent David Shaver is my supervisor. Prior to CCIU from 2002-2006 I worked for DHS Customs. From 1992-2002 I was a Police officer in State of TX. DHS training received Treasury CFP, 9 designated as a computer forensic agent, Initial portion Comp TOD curriculum. DHS training, CCIU numerous DOD courses, DCITA 3 certifications that DOD issued Comp A plus NET plus, MS Windows Tech, AC Council certification. I observed digital media for this case, Supply annex NIPR computer. My process to verify image of computers was correct using ENCASE, searching the medium. The initial search located user account for PFC Manning and internet history under that profile, it was created 21 May 2010. I located a Google search for the terms WikiLeaks, open closed Article 15 hearing. Also, a web history for a web page related to Article 155. I was approached by Special Agent Shaver to re-examine image of the computer to specifically look for Iraq SharePoint exchange server?s global address list. The second search I conducted located text files in the computer of Staff Sergeant Eigelow?s account. The files contained .mil email addresses, unit names or email names. of the file located in the My Documents folder, remaining in recycle bin to be recycled. 2 archive zip files. They used the same naming convention, blah.zip. Inside those were text files containing extracts of global address list. In the recycle bin tmp.pdf 18 pages of UCMJ records, counseling statements and the enlisted record portal. In Staff Sergeant Peter Bigelow?s account someone searched for Julian Assange, WikiLeaks, Global Address List, macro outlook, and BDA text files. The last 3 that I mentioned were searches that indicated the user was beginning to research a way to find and extract information from the GAL and download it to a file. In Peter Bigelow's account there was access to AKO for account profile. Access to PFC Manning?s G?mail account was also under that profile. The webpage on computer was for amazon.com, the user was PFC Manning. The Google search page login user was PFC Manning?s mail account. Invoice purchase order for a book, billing information was for PFC Manning?s Maryland address. As far as the internet activity, AKD and G-mail located in index.dat file which is an internet explorer history record. The searches for the GAL were one of the first things then there were creation of One 158 co-dmmetumH 00830 file done within a minute or two of the PFC Manning Gmail account. CROSS-EXAMINATION Questions by the assistant defense counsel: There were other pieces to the story, so I put them all together. It was likely it was removed. Forensics can only say it was created and saved forensics indicates it was removed, I can't say definitely if it was. The searches were for gender identity disorder, adjustment disorder was done on the Wikipedia page. There was a book about feminine facial surgery. It was shipped to PFC Manning's address in Maryland. I prepared a report of findings on the Supply Annex NIPR computer. I stand by the findings in the report. There are a couple of ways to show that the accused account was created 21 May 2010. I can tell when an account was created using forensic tools. You can tell when it was accessed by a user, which is one thing. The Microsoft operating system have a tendency to access a lot of files so it is difficult to say what someone may claim is an access date. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] SPECIAL AGENT DAVID SHAVER, Civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1: I examined a computer seized from Jason Katz. To my knowledge he was a former employee of the Department of Energy. I examined a work computer belonging to him, it was a Linux computer, to determine if a file called b.zip was present on that computer. I conducted my search the same as I did before on the other computers. B.zip was a password protected zip file. With the password I was able to open it, which I obtained from another CCIU agent. In the zip file was a movie file, it was an aircraft battlefield video. It was a part of the Farah investigation folder; it was placed on the computer on 15 December 2009. I cannot determine if the user of the computer got the password to view the file. 159 42 43 44 45 46 47 CROSS-EXAMINATION Questions by the assistant defense counsel: I have seen this video before; it took place in May 2009. The video arrived on computer 15 December 2009. WikiLeaks had similar video around that time frame the movie was the same. I do not know date folder was placed on CENTCOM server. It is not the same that is on the [dot] .22 computer, it is a different video. REDIRECT EXAMINATION Questions by Assistant Trial Counsel 1: The movie file was the same as the one on the CENTCOM server. I know this because both were the same hash value and I watched both videos. [The witness was temporarily excused, duly warned, and withdrew from the courtroom.] [The Article 20 December 2011.] 32 hearing was recessed at 1151, [The Article 32 hearing was called to order at 1351, 20 December 2011.] All parties present prior to the recess were again present in the hearing. Assistant Trial Counsel 1 moved to have the following documents considered by the Investigating Officer: IA Exam (00375768-00375771) IA Training requirement (00375772) IA Virtual Training (00375773) IA Virtual Training #2 (00375774) Test Results (00022348) Al?Qa'ida Recruiting Video Al?Qa'ida in the Arabian Pennisula Magazine 00012711) Enemy #1 Possession Evidence IIR 6 089 0563 11 (Redacted) {0041660~00410664) Metadata display {00410658-00410659) Forensic Ally Recovered Material {00410654-00410657) C3 Document {00378141-003378147) (00408202?00408236} (00012570? 150 00832 PFC Manning?s Military Intelligence Work Product (00410607-00410609) 100112 (00410613-00410614} (004106132-00410618) (00410600-00410602) {00410668? Range Story Board SIPRNET Email Multiple SIPRNET Email SIPRNET email 091130 Afghanistan War Logs Posted by WikiLeaks 00410670) IIR Bates 5 332 0069 10 {00410619?00410622) Defense Info System Agency Doc DISA Trickler Report (00410653) CIDNE Data on the Internet (00410554) NCD Valuation Documents (00410556?00410560) The civilian defense counsel had no objection to the documents being considered by the Investigating Officer. SPECIAL AGENT ANTONIO PATRICK EDWARDS, U.S. Army, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the trial counsel: I am an investigator with CCIU of Army CID. I have been a CID agent for a little bit longer than 3 and half years. I have been involved in law enforcement for approximately 12 years. I have had extensive training that qualifies me for this job. I became involved in this case on 25 May 2010, when the CCIU received an e?mail from Mr. Chet Uber. In the email Mr. Uber related that he was aware of an individual who was in contact with the United States Army, Military Intelligence Analyst, who was releasing classified information to an Australian national associated with WikiLeaks. I subsequently contacted Mr. Uber, who put me in touch with Mr. Adrian Lamo, who confirmed he was the individual in contact with the United States Army Military Intelligence Analyst. I came in centact with him physically 11 June 2010. I met him in Carmichael, California. The general nature of that meeting was to collect evidence pertaining to the chat logs that he alluded to. I was able to collect one removable hard drive that Mr. Lamo had in his possession. Also, an HP mini laptop which had a hard drive in it, those devices were then kept in my custody and returned to CCIU and turned over to the forensics examiner for evaluation. 151 can-ammo:me He was to He was Mr. Lamo was a confidential informant for CID. collect whatever would assist us in the investigation. given reasonable expense reimbursement. Information was provided in exchange but it was not substantive to this investigation. He is not a confidential informant. When Mr. Lamo removed a hard drive, we purchased a hard drive in order to not leave Lamo without a computer. CROSS-EXAMIHAEION Questions by the assistant defense counsel: Mr. Lamo was confidential informant for CID the latter part July 2010 and ended 3-4 months ago (August-September 2011). Mr. Lamo consented to exam of both items. I concentrated my investigation to specific search to chats and communications with PFC Manning. I am familiar with a Mr. Danny Clark; I attempted to interview him in Boston. I was not able to interview him he invoked his right to counsel. Mr. Clark did have communication with Mr. Lamo. Mr. Lamo provided a chat log between him and Mr. Clark. No one from law enforcement suggested communication between Mr. Clark and Mr. Lamo. If Mr. Lamo communicated with Mr. Clark we wanted that information but we also advised him to tread On 25 May 2010, I communicated via phone with Mr. Lamo the conversation lasted minutes. Basically, establishing he was the individual in contact with the Army Intel analyst. We had periodic communication with Lame to set up stuff. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] ADRIAN LAMB, Civilian, was called as a witness for the prosecution, was sworn, and testified in substance as follows: DIRECT EXAMINATION Questions by the trial counsel: My name is Adrian Lame; I live in San Francisco, CA. OBJECTION The civilian defense counsel objected stating that the line of questioning cause for speculation. 162 mummemmH 00834 The direct examination by the trial counsel continued as follows: I communicated with bradassBT; the emails were tied to 10th Mountain to where PFC Manning was stationed. I don?t recall the [dot].mail address. But the other emails were from Bradley.e.manning@gmail.com. I responded to email. I could not read the emails because they had been enciphered using an outdated key. We made contact over AOL instant messenger on 20 May 2010. We used IM because it was using software called Off The Record. It is installed manually on certain clients and automatically on others. I use because I value my privacy as a citizen. PFC Manning identified himself, when I asked them if they use Facebook and they indicated that although I could not search for their account because it was set up so that only their friends could see it. But they could search for mine, and I subsequently received a friend request additionally I was provided with authentication credentials for the AKO portal. I did not log into PFC Manning?s AKO account. I sought verification because at that point he had made a number of claims that caused me to believe that I might be misled as to the identity of who I was speaking with and I desired verification of the identity of the remote party and the claims that they were making. We were chatting over a period of about 20 May through 26 May. The key never changed. Special Agent Edwards responded to my reports of PFC Manning?s actions and he came to California to interview me. I provided Special Agent Edwards with one 500 Gigabyte hard drive, a net book and hard drive and two thumb drives. I did not alter the chat logs and I did not manipulate them either. I am aware of Jason Kata. I was informed by a user of a chat network there was an individual that was attempting to a video. And that they were using federally funded lab resources to do so. I have Asberger?s it does not affect my memory. I have used drugs in the past. I did not use drugs when I was in contact with PFC Manning. My medicine regime allowed me to function normally. There is necessity to stay ahead of a story before it develOps a life of its own to ensure the facts are correct. I have not received any compensation. CROSS-EXAMINATION Questions by the civilian defense counsel: 163 00835 I have been convicted of a felony, in 2000, I did a string of hacks against large companies, and in 2004 I was found guilty of computer fraud. I received six months house arrest and 2 and half months probation. I had to pay restitution as well. In April 2010 I was involuntarily institutionalized. After I called the police due to a dispute over the possession of my medications, I thought someone stole my medications and my backpack. I called the police and shortly after they arrived is when I was institutionalized for nine days. I was released I May 2010. I do computer work at odd jobs. I am not employed full time. I am not receiving any benefits for my testimony today. No promises have been made by the government, and I am not receiving any money for my testimony. I am here to ensure the truth is preSented. [The Article 32 hearing was recessed at 1425, 20 December 2011.] [The Article 32 hearing was called to order at 1433, 20 December 2011.] All parties that were present prior to the recess are once again present. CROSS-EXAMINATION Questions by the civilian defense counsel: We exchanged emails but I do not know the exact number. The bulk of the emails were and not readable. I did not read the emails. Instead we used AOL IM. It was my idea to talk on AOL IM. We began chatting 20 May 2010, we chatted over the next five days. I was living with my parents. I decided to contact the Army authorities through a third party as to the seriousness of the admissions made in the chats. At that time I made communication about the communications that were made to me. The day after my first chat with bradassB? what I saw in the chats were egregious and required my reaponse. The day after my chats I reported them to law enforcement. I recall chatting with Danny Clark on 21 July 2010. I contacted him because I was curious about his role in the WikiLeaks affair. I received no active direction to engage in anything to do with WikiLeaks. The law enforcement officers stated that if I 164 mummthI?I observed any wrongdoing to report it. That if I saw or heard anything to let them know. I emailed the chats to Agent Edwards; I was not pounding on any doors. At that time I was not working with law enforcement for the purpose of getting information from Clark, until it was apparent that he was involved in sensitive activity. I found it unusual that an individual would install software on an Army computer and had to have a civilian to help him do it. I was not familiar with the organizational structure of WikiLeaks. From a professional perspective I am curious how server was I asked questions out of curiosity. Curious individuals ultimately cooperate with law enforcement officials. is a public peer to peer network. Someone attempting to covertly share a file would not use this as his first choice. There are a number of previous statements; I am not sure whether it was by bradassB7 or someone else. I was asking all of these questions out of my own curiosity, I have no particular love for law enforcement. I was working with law enforcement when I asked PFC Manning those questions. I have worked in journalism and when I see stories I pursue them. I do see myself as a reporter. I have written some articles that would qualify as journalism. There is a requirement to protect confidential sources. At the time I provided itlr I was concerned by the depth of the unsurpassed leakage evident in the admissions made. ?Off The Record? is an automated or manual service, you use it you are using it to your IM. individual that I was chatting with intended for this information to remain confidential. The chat logs dealt with sensitive subjects regarding bradass87. I believe they were reaching out for a likeminded individual that would act as a similar figure. I believe that the person that I was speaking to was coming to me for motivation moral and emotional support. I do not believe that they were looking for guidance so much as they were looking to brag about what they had done. I do consider myself to be a minister; I am recognized as a minister in the Universal Life Church. A person might come to a minister as a formal act of religion or a matter of conscience. The REDIRECT Questions by the trial counsel: 165 PRf) UJM CID-.Joxma use-.1: .4 00837 The first person that I met with after chatting with PFC Manning was Timothy Douglas Webster. At that time he was a student at U.C. Santa Barbara. He is not a member of the U.S. Government. I met with a CID Agent or law enforcement officer. I believe that it was the 23rd or the 24th, but I do not have it marked on a calendar. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] [The Article 32 hearing was recessed at 1518, 20 December 2011.] [The Article December 2011.] 32 hearing was called to order at 1531, 20 All parties that were present prior to the recess are once again present. SPECIAL AGENT DAVID SHAVER, Civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION Questions by Assistant Trial Counsel 1: I examined two computers, I imaged them, verified hash values, followed my normal procedures and I had a limited search for these pieces of media. I was only authorized to search for any communication between Mr. Lamo and bradassd?. I found communications on the windows computer, there were four chat logs. On the Linux computer there were several files of copies of the chat logs which appear to have been modified. I believe those were the ones that were released to the press. I compared the chat logs found on Mr. Lamo?s computer to the ones found on PFC Manning?s computer. At some point in time the chats on PFC Manning?s computer had been enabled and from that point on they basically matched word for word. [The witness was permanently excused, duly warned, and withdrew from the courtroom.] SPECIAL AGENT TROY BETTENCOURT, v.3. Army, was recalled as a witness for the prosecution, was reminded of his oath, and testified in substance as follows: DIRECT EXAMINATION 166 Questions by Assistant Trial Counsel 1: I am familiar with phishing or spear phishing; it is an attempt by an individual to gain personal information or financial information from a victim through electronic communication. Spear phishing is more targeted, they will get more information on you so that it appears to be legitimate. To make spear phishing more effective you need intelligence about your target. If you are going to craft a message that somebody is going to fall for, the more information that you know about them to make it seem like it is a legitimate message the more effective you will be. Spear phishing in most cases is done for financial gain. The only way that we have seen is not through the public but they have had some dissention within their ranks and they have had people leave WikiLeaks and at some point Mr. Assange had an NBA agreement drafted up for his employees. OBJECTION The civilian defense counsel objected to the witness?s testimony on the grounds of hearsay. The Investigating Officer overruled the objection. The direct examination by the assistant trial counsel continued as follows: Mr. Assange demanded his employees sign a NDA that they would not disclose any of the information in the possession of WikiLeaks. EXAMINATION BY THE ARTICLE 32 HEARING Questions by the Investigating Officer: All of the information in possession of WikiLeaks is of great value. [The witness was permanently excused,r duly warned, and withdrew from the courtroom.] The government rested. {The Article 32 hearing was called to order at 0906, 21 December 2011.] 157 mummemMH 00839 All parties present prior to the recess were again present in the hearing. The Investigating Officer advised the spectators unauthorized or disruptive behavior would result in removal from the courtroom. SERGEANT DANIEL BADGETT, U.S. Army, was called as a witness for the defense, was sworn and testified in substance as follows: DIRECT EXAMINATION Questions by the civilian defense counsel: I am Sergeant Daniel Padgett of Bravo Company, 2d Brigade Special Troop Battalion, 2d Brigade, 10th Mountain Division (Light). I have been in the Army 3 years. I have prior service as a Marine from January 2001 through January 2005. My current M08 is 35L, Counter Intelligence Agent, but I was previously a 35F when I initially entered the Army. I am outprocessing from my current unit and will be PCSing next month. I deployed to Iraq in October 2009. I was assigned as the night shift NCOIC in the TSCIF. I helped oversee operations and execute the missions at night. I took over that role shortly after we got in country and arrived at FOB Hammer. I never received any initial counseling from my supervisor. I had not attended any leadership schools at the time. I was told my responsibilities as the night shift NCOIC were to oversee the operations and to report anything that happened throughout the course of the shift that night. I supervised two other including the accused. I was not responsible for counseling the Soldiers initially, but I requested that authority to counsel later when the need arose. The leadership within the 82 section did not exercise much oversight. At the time, I had two duty assignments, so when I would come and go from the Brigade 82, the atmosphere was different regarding who was in the SCIF and how the shifts were structured. There was no clear chain of command. As far as the Brigade chain of command, I was not the accused's direct supervisor. The accused had his own Brigade chain of command. After an incident with the accused inside the SCIF, I went to the accused's direct supervisor, who worked day shift, and requested authorization to counsel the accused on the incident because it happened during my watch of the night shift; and it was granted. 168 The accused was late for duty and I wanted to formally correct the accused. The first counseling session was December 2009. I was going over the importance of being on time at the appointed place of duty in a deployed environment. During the counseling session the accused got angry, flipped the table we were sitting at and had to be restrained. The counseling session took place in the Brigade 82 conference room. Once the accused calmed down, we completed the counseling session and cleaned up the conference room. After that, I don't recall what happened. Initially the accused?s body language was calm but his demeanor changed as the counseling session went on. He stared at me in a way that made me uncomfortable. Shortly after that, the accused stood up, turned the table over, and the equipment on the table went crashing to the ground. I never noticed the accused approaching a weapons rack that had contained weapons. I was very concerned about the accused at the time possibly doing something to harm himself or anybody else in the building that night. I placed my hands on the accused's shoulder to shove him aside and CW2 Ehresman grabbed the accused in a full nelson type hold to prevent him from grabbing a weapon. CW2 Ehrisman had the accused sit on a bench until he calmed down. After the incident was resolved, the accused was not counseled for disrespect. The Brigade chain of command took everything over after the incident. I talked to a few people in the Brigade about what happened. I vaguely recall speaking to Master Sergeant Adkins. I don?t recall speaking to Major Clausen, the Company First Sergeant or the Company Commander about the incident. The accused never received UCMJ action for the incident. CROSS-EXAMINATION Questions by Assistant Trial Counsel 2: I attended 35F AIT at Fort Huachuca, Arizona where I learned how to handle confidential and classified information. I was trained on the importance of OPSEC and INFOSEC. I was trained about enemies of the United States and the consequences of compromising classified information and how it could be harmful to national security. I went to JRTC prior to the deployment to prepare. I worked in the Brigade 82 half of the time I was deployed. The accused worked in the SCIF as a Shia threat analyst. Inside the SCIF we used the DCGS, CIDNE and Tiger Net computer based tools to help us do our job. We did not use CIDNE-Afghanistan. We did not use the State Department 169 mummemML?I NETCENTRIC Diplomacy database. have never used it. I don't know what WGET is, and I I never burned classified information onto CDs for personal use. That was not authorized. I have, and the accused should have, signed multiple non?disclosure agreements: which tell you to safeguard classified information and the consequences if you fail to do so. Every Soldier with a security clearance has a personal responsibility to safeguard classified information. EXAMINATION BY THE ARTICLE 32 HEARING Questions by the Investigating Officer: We were told music was authorized inside the TSCIF. There was music on the shared drive, and we could bring non-writable music CDs into the SCIF to listen to. There were movies present but we were only allowed to watch them on the unclassified computer system only. There were a couple of games on the shared drive on the SIPR terminals. When we arrived in country, the games were already there on the shared drive but I don?t recall if they were removed. There being no further questions by counsel for both sides, the witness was permanently excused, duly warned and exited the courtroom. CAPTAIN KEAI, U.S. Army, was called as a telephonic witness for the defense, was sworn and testified in substance as follows: DIRECT EXAMINATION Questions by the civilian defense counsel: My full name is Barclay David Keay. My current unit is Battalion in 2d Brigade, 10th Mountain. I was deployed to Iraq in December 2009 directly out of the Captains Career Course. I linked up with the 2d Brigade Combat Team at FOB Hammer after they had completed RIP TOA in November 2009. This was my second deployment, but first deployment in S2 intell. Initially, I did not have an MTOE position. I was an 32 Captain for about 5 or 6 weeks, but I eventually transitioned to my key development position as the 4/31_Battalion S2. I was told I was going to he the 82X but when I got there I was told I would be the night OIC. My duties as the night OIC were to take over whatever tasks the daytime duties were tackling. There was a skeleton crew at night so we would aide in what the daytime guys no 00842 were doing. It was my first S2 position so I was reading a lot to get my knowledge base up in preparation for my key development position. I had 3 Soldiers on the night shift with me, none of them being NCOs because, I assumed there were not enough NCOs to go around. The primary focus was the day shift when everything was happening and the key leaders and main intell guys were awake to help the decision makers. The accused was one of my Soldiers. The ranks of the Soldiers on the night shift were all Eds, which included the accused, Specialist Padgett and Specialist Cooley. The night shift's taskings came from the day shift; which were parts of brief or products that were being presented to the senior leaders and decision makers. I was overseeing to ensure the night Soldiers were doing what they were supposed to do. Not sleeping but actually working and getting things done. I spent a few weeks on the night shift then I moved to the day shift and then ultimately transitioned to the Battalion S2 position. I started out on the night shift as an opening to read and learn before they opened me up to daytime and then down, ultimately to 4/31. While I was the night shift DIC I noticed Soldiers listening to music, or looking at video clips that were being passed around. I sensed Soldiers were looking at movies but I just personally didn?t see any. I sensed Soldiers were playing games but I just didn't catch them with their hands in the cookie jar. I thought it was odd these activities were taking place inside a SCIF and I inquired with the lower enlisted guys why they did it and other S2 officers, but I can't remember, specifically, who I might have asked. I remember walking in and being surprised and not what I expected. I remember giving a sworn statement to CID and to the SEC ARMY 15-6 Investigating Officer investigating this event. There were two different investigating crews that came down to Fort Drum and one of them asked for a sworn statement. The question I was asked in the sworn statement was, ?Who did you ask about the appropriateness of media on the SIPR side?" My answer to that questiOn was, asked lots of people because I didn?t know what the right answer was. I don't know if I ever went to Major Clausen, but I went to my peers, Captain Martin, Staff Sergeant Balonek now CW2, Second Lieutenant Fields and a bunch of to include Manning, I think. I didn't get a specific answer, I just kept asking." I asked around about this because it was my first intel experience right out of the career course. Everything I was told at the career course, I was trying to put into context with what was going on and for my actual position. What I was 171 ~00843 told at the course was media was not allowed or tolerated inside the nor was it when I worked in Huachuca. However, things were different downrange. Music was tolerated so that Soldiers could be more productive and it wasn't looked at as negatively as I thought it was at first. So I just pushed it to the side and did not think anything really of it. I remember thinking it wasn't probably something we should be so liberal about. But I did ask a few people. Coming in and listening to the music inside the SCIF was an accepted practice. After my time as night OIC in the SCIF, I went down to TOC Carver just off FOB Hammer with the 4/31 Infantry Battalion was. I took my new job on 1 January. There was no SCIF at my new work location. We were on the back side of the TOC. There was media there but it was not a TSCIF. I know what a SCIF looks like now and there is no music while the Soldiers are working. There are no unauthorized programs, music, games, or video games on the SIPR computers. From my perspective, I felt like the accused wanted to be a good Soldier but I didn?t know the depth behind this unit beforehand. My initial impression was the accused wanted to try and he did good analytical work. There being no further questions by counsel for both sides, the witness was permanently excused, duly warned and the phone call was terminated. The defense offered Investigating Officer Exhibit 21 for consideration by the Investigating Officer without objection by the government. The defense rested. The defense did not request the Investigating Officer produce any additional witnesses other than the witnesses that were previously requested and denied. The defense did not request any witnesses be recalled by the Investigating Officer for further crosseexamination. The accused declined to make any statement in his behalf to the Investigating Officer. The Investigating Officer closed the hearing for submission of any additional evidence to be considered. 172 The defense objected to the hearing recessing for the day and reconvening the following day, on the grounds all parties should be prepared to deliver closing argument to the Investigating Officer. The Investigating Officer noted the defense objection. The government responded to the defense objection citing the reasons the government requested the break in hearing; and all parties agreed during a prior closed conference with the Investigating Officer. The Investigating Officer noted the conference with all parties present on 20 December 2011, which there was an agreement by all parties to recess at the close of defense evidence and to reconvene at 1000, 22 December 2011 to permit counsel for both sides to prepare concluding arguments. The government at a closed conference with all parties present held prior to opening the current session, the government amended its request to start at 0900, 22 December 2011. The Investigating Officer stood on the previous agreement made by all parties and modified the start time to 0900, 22 December 2011. The defense responded the defense witnesses and documents submitted were in possession of the government prior to the Article 32. The defense entered into the agreement based on the uncertainty of the defense presentation of evidence. The defense noted the hearing recessed early and should reconvene at 1500 or 1600, 21 December 2011. The Investigating Officer overruled the defense objection and ordered the hearing would reconvene at 0900, 22 December 2011. [The Article 32 hearing recessed at 0942, 21 December 2011.] [The Article 32 hearing was called to order at 0902, 22 December 2011.] All parties present prior to the recess were again present in the hearing. The Investigating Officer advised the spectators unauthorized or disruptive behavior would result in removal from the courtroom. 173 madame.va?i The civilian defense counsel made a concluding argument to the Investigating Officer. The trial counsel made a concluding argument to the Investigating Officer. The Investigating Officer re-advised the accused of role of the Investigating Officer in the proceedings. The Investigating Officer announced the proceedings closed. [The Article 32 hearing closed at 1031, 22 December OF 174 the were 2011.] 00846 INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL USE OF FORM Use this form and MOM, 1984, Appendix 14, will be used by the trial counsel and the reporter as a guide to the preparation of the record of trial in general and special court?martial cases in which a verbatim record is prepared. Air Force uses this form and departmental instructions as a guide to the preparation of the record of trial in general and special court?martial cases in which a summarized record is authorized. Army and Navy use DD Form 491 for records of trial in general and special court?martial cases in which a summarized record is authorized. lnapplicable words of the printed text will be deleted. COPIES See MOM, 1984, RCM 1103(g). The convening authority may direct the preparation of additional copies. ARRANGEMENT When forwarded to the appropriate Judge Advocate General or for judge advocate review pursuant to Article 64(a), the record will be arranged and bound with allied papers in the sequence indicated below. Trial counsel is responsible for arranging the record as indicated, except that items 6, 7, and 15e will be inserted by the convening or reviewing authority, as appropriate, and items 10 and 14 will be inserted by either trial counsel or the convening or reviewing authority, whichever has custody of them. 1. Front cover and inside front cover (chronology sheet) of DD Form 490. 2. Judge advocate's review pursuant to Article 64(a), if any. 3. Request of accused for appellate defense counsel, or waiver/withdrawal of appellate rights, if applicable. 4. Briefs of counsel submitted after trial, if any (Article 5. DD Form 494, "Court?Martial Data Sheet." 6. Court?martial orders promulgating the result of trial as to each accused, in 10 copies when the record is verbatim and in 4 copies when it is summarized. 7. When required, signed recommendation of staff judge advocate or legal officer, in duplicate, together with all clemency papers, including clemency recommendations by court members. 8. Matters submitted by the accused pursuant to Article 60 (MOM, 1984, RCM 1105). 9. DD Form 458, "Charge Sheet" (unless included at the point of arraignment in the record). 10. Congressional inquiries and replies, if any. 11. DD Form 457, "Investigating Officer's Report," pursuant to Article 32, if such investigation was conducted, followed by any other papers which accompanied the charges when referred for trial, unless included in the record of trial proper. 12. Advice of staff judge advocate or legal officer, when prepared pursuant to Article 34 or otherwise. 13. Requests by counsel and action of the convening authority taken thereon requests concerning delay, witnesses and depositions). 14. Records of former trials. 15. Record of trial in the following order: a. Errata sheet, if any. b. lndex sheet with reverse side containing receipt of accused or defense counsel for copy of record or certificate in lieu of receipt. c. Record of proceedings in court, including Article 39(a) sessions, if any. d. Authentication sheet, followed by certificate of correction, if any. e. Action of convening authority and, if appro? priate, action of officer exercising general court? martial jurisdiction. f. Exhibits admitted in evidence. g. Exhibits not received in evidence. The page of the record of trial where each exhibit was offered and rejected will be noted on the front of each exhibit. h. Appellate exhibits, such as proposed in? structions, written offers of proof or preliminary evidence (real or documentary), and briefs of counsel submitted at trial. DD FORM 490, MAY 2000 Inside of Back Cover